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1. The Claimant instituted the suit herein vide a Memorandum of Claim dated 5th February 2018 seeking the following orders against the Respondents: -
a. A declaration that the termination process as carried out by the Respondent is unlawful and that during his employment with the Respondent, he was not remunerated as required by law
b. Payment of sums of money claimed in the Memorandum of Claim.
c. Costs and interests
d. Any other relief that the Court may deem fit and just to grant
2. The Claimant averred that he was employed by the Respondent from 2nd September 2015 until 2nd May 2017 when his employment was unfairly terminated by the Respondent without any justifiable reasons.
3. The Claimant particularized the unlawfulness of the termination of his employment as follows:
i. The termination was without any fair valid reason
ii. The termination was not in accordance with fair procedure
iii. No leave pay was given
iv. No one months’ salary in lieu of notice was paid
v. No overtime dues were paid
vi. No compensation for unfair termination was paid.
4. The Claimant contended that owing to the unfair and unlawful termination, he is entitled to terminal benefits which he itemized to be:
i. One month pay in lieu of notice …………...… Kshs. 6,325
ii. Compensation for unfair termination ………. Kshs. 66,000
iii. Unpaid house allowance ………………………. Kshs 16,500
iv. Service pay/Gratuity ……..….….……….……. Kshs 4,125
v. Unpaid public holiday worked ……………….. Kshs 572.9
vi. Underpayment………………………..…………. Kshs. 1,373.325
vii. Accrued leave earned but not taken …..….. Kshs. 12,000
Total ………………………………… Kshs. 103,146.225
5. In response, the 1st Respondent filed a Reply to the Statement of Claim dated 3rd May 2018 denying the averments made by the Claimant in his claim particularly, that he was the Respondents’ employee. It is the 1st Respondent’s case that since there existed no employment or contractual obligation binding the Claimant and the 1st Respondent, the claim herein is misconceived and unwarranted.
6. The 1st Respondent however stated that if the Claimant was dismissed from employment, it was because he participated in an illegal strike.
7. The 1st Respondent urged the court to strike out the Claimant’s case.
8. The 2nd Respondent entered appearance on 25th June 2019 through the firm of L.G Menezes & Company Advocates but did not file any pleadings.
The Evidence
9. The suit was heard on 4th November 2024 when the Claimant testified as CW1 in furtherance of his case. The Claimant adopted his witness statement filed with his claim as part of his evidence in chief. He also relied on the documents he filed in support of his case as his evidence.
10. He averred that he was employed by the Respondents on 9th September 2015 and worked until 2nd May 2017 when his employment was terminated without any notice.
11. He stated that on the said date, he reported to work as usual but was denied access to the Respondents’ premises at the gate. According to the Claimant, the reason for his termination from employment was because he asked for salary increment, off days, house allowance and remittance of statutory deductions.
12. He further averred that during the course of his employment, he was not paid overtime dues despite working every day of the week, including public holidays. He also claimed that he was not paid a house allowance and that statutory deductions for NSSF and NHIF were not remitted. He urged the court to award him the reliefs he tabulated in his Memorandum of Claim.
13. The Claimant denied participating in a strike and maintained. He further testified that he was never invited to a disciplinary hearing nor issued with a termination letter.
14. On cross-examination by Counsel Achieng, the Claimant stated that he was employed by the 2nd Respondent as a loader and was paid according to tonnage at the rate of Kshs. 14 per tonne.
15. The Claimant denied participating in a strike. He denied any knowledge that there was no strike. He admitted that he was paid Kshs 11,000 at the Kakamega Labour Office after leaving employment.
16. On re-examination, the Claimant stated that at the labour office, he was not paid overtime, leave dues and house allowance.
17. At the close of the Claimant’s case, counsel for the 1st Respondent sought orders that the evidence of the 1st Respondent’s witness in Cause No. 105 of 2018 be applied to the present suit. The Court allowed the application, and the said evidence was accordingly adopted as part of the record in this matter.
18. Parties were then directed to file written submissions. The Claimant’s submissions are dated 21st February 2025 while the 1st Respondent’s submissions are dated 3rd February 2025. The 2nd Respondent did not file its submissions.
19. In his submissions, the Claimant asserted that he testified that he was sent away from work without being told the reason and without being accorded any hearing. The Claimant submitted that the purported invited to attend disciplinary hearing does not meet the requirements laid down by section 41 of the Employment Act.
20. On this basis, the Claimant urged the court to make a finding that he had discharged the burden of proving unfair termination of his employment by the Respondents.
21. The Claimant sought for an award as prayed for in his claim, costs and interests.
22. On its part, the 1st Respondent submitted that it was the Claimant and not the 1st Respondent who terminated the employment service, when the Claimant, towards the end of his contract willingly and without notice left his employment and only came back to sue the 1st Respondent in 2018. The 1st Respondent submitted that it had no reason to terminate the Claimant’s contract as the same had already automatically terminated.
23. Further, the 1st Respondent submitted that the Claimant in his testimony stated that he had a contract with the 1st Respondent for a period of 6 months. According to the 1st Respondent, no evidence in the form of NHIF statements or contracts was presented by the Claimant to show that he continued to work for the 1st Respondent after his contract had lapsed or that he even made a request for renewal to the 1st Respondent.
24. On whether the Claimant is entitled to the reliefs sought, the 1st Respondent submitted that the Claimant acknowledged and confirmed the non-renewal of his contract and further received all his dues in a timely manner without disputing the authenticity of the payroll cash listing produced by the 1st Respondent. Consequently, the 1st Respondent contends that nothing is owed to the Claimant.
25. In the end, the 1st Respondent prayed for the dismissal of the Claimant’s suit with costs.
DETERMINATION
26. Upon considering the pleadings herein, the evidence of the parties, the submissions and the authorities cited, I find that the issues for determination are: -
i. Whether the Claimant was an employee of the 1st Respondent or the 2nd Respondent
ii. Whether the Claimant’s contract lapsed by effluxion of time
iii. Whether the reliefs sought should issued
27. On the first issue, the 1st Respondent in its reply to the Statement of Claim denied that the Claimant was its employee. However, from the documents filed by 1st Respondent, particularly the engagement contracts from pages 2 to 8 of the Respondent’s documents and the payroll cash listings at page 10 of its list and bundle of documents, it is clear that the 1st Respondent had engaged the Claimant as a loader.
28. It therefore follows that the Claimant was the 1st Respondent’s employee.
Whether the Claimant’s contract lapsed by effluxion of time
29. The Claimant in his testimony and in the witness statement he adopted in court as part of his evidence stated that he was terminated from employment on 2nd May 2017 without notice.
30. On the other hand, the 1st Respondent has maintained that the Claimant’s contract lapsed by effluxion of time.
31. In the 1st Respondent’s list of documents at page 2, the 1st Respondent attached a six-month engagement contract which indicates that the Claimant’s employment contract was to lapse on 1st May 2017. This therefore means that the Claimant was not an employee of the 1st Respondent as at 2nd May 2017 when the events giving rise to this claim are alleged to have occurred.
32. It is trite law that fixed-term contracts terminate automatically by effluxion of time. The Court of Appeal in the case of Francis Chire Chachi v Amatsi Water Services Company Limited, [2012] eKLR the court stated as follows: –
“This court has recently stated that employers are not under any obligation to give employees reasons for non-renewal of fixed term contracts, unless there is such an obligation created in the expiring contract.”
33. Similarly, in the case of The Registered Trustees De La Salle Christian Brothers T/A St. Mary’s Boys’ Secondary School v Julius D. M. Baini [2017] eKLR, the Court of Appeal observed as follows:-
“It is our finding that the respondent''s contract ended on 31st December, 2014. There was no obligation on the appellant to give notice of expiry or information that it would not be renewed. We find no firm evidence that there was either an extension of the expired contract or a commencement of a new one. Nor is there firm evidence that the respondent worked for one week in January 2015. There was therefore no question of unfair termination of employment. The claim had no basis and ought to have been rejected.”
34. The Claimant’s employment having lawfully lapsed by effluxion of time on 1st May 2017, there was no subsisting employer-employee relationship between him and the 1st Respondent as at 2nd May 2017. Accordingly, any claim founded on events that occurred after the expiry of the contract lack merit. The Claimant’s suit is accordingly dismissed in its entirety.
35. There shall be no orders as to costs.
DATED, DELIVERED AND SIGNED
THIS 9TH DAY OF OCTOBER, 2025.
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1. The Claimant instituted the suit herein vide a Memorandum of Claim dated 5th February 2018 seeking the following orders against the Respondents: -
a. A declaration that the termination process as carried out by the Respondent is unlawful and that during his employment with the Respondent, he was not remunerated as required by law
b. Payment of sums of money claimed in the Memorandum of Claim.
c. Costs and interests
d. Any other relief that the Court may deem fit and just to grant
2. The Claimant averred that he was employed by the Respondent from 2nd September 2015 until 2nd May 2017 when his employment was unfairly terminated by the Respondent without any justifiable reasons.
3. The Claimant particularized the unlawfulness of the termination of his employment as follows:
i. The termination was without any fair valid reason
ii. The termination was not in accordance with fair procedure
iii. No leave pay was given
iv. No one months’ salary in lieu of notice was paid
v. No overtime dues were paid
vi. No compensation for unfair termination was paid.
4. The Claimant contended that owing to the unfair and unlawful termination, he is entitled to terminal benefits which he itemized to be:
i. One month pay in lieu of notice …………...… Kshs. 6,325
ii. Compensation for unfair termination ………. Kshs. 66,000
iii. Unpaid house allowance ………………………. Kshs 16,500
iv. Service pay/Gratuity ……..….….……….……. Kshs 4,125
v. Unpaid public holiday worked ……………….. Kshs 572.9
vi. Underpayment………………………..…………. Kshs. 1,373.325
vii. Accrued leave earned but not taken …..….. Kshs. 12,000
Total ………………………………… Kshs. 103,146.225
5. In response, the 1st Respondent filed a Reply to the Statement of Claim dated 3rd May 2018 denying the averments made by the Claimant in his claim particularly, that he was the Respondents’ employee. It is the 1st Respondent’s case that since there existed no employment or contractual obligation binding the Claimant and the 1st Respondent, the claim herein is misconceived and unwarranted.
6. The 1st Respondent however stated that if the Claimant was dismissed from employment, it was because he participated in an illegal strike.
7. The 1st Respondent urged the court to strike out the Claimant’s case.
8. The 2nd Respondent entered appearance on 25th June 2019 through the firm of L.G Menezes & Company Advocates but did not file any pleadings.
The Evidence
9. The suit was heard on 4th November 2024 when the Claimant testified as CW1 in furtherance of his case. The Claimant adopted his witness statement filed with his claim as part of his evidence in chief. He also relied on the documents he filed in support of his case as his evidence.
10. He averred that he was employed by the Respondents on 9th September 2015 and worked until 2nd May 2017 when his employment was terminated without any notice.
11. He stated that on the said date, he reported to work as usual but was denied access to the Respondents’ premises at the gate. According to the Claimant, the reason for his termination from employment was because he asked for salary increment, off days, house allowance and remittance of statutory deductions.
12. He further averred that during the course of his employment, he was not paid overtime dues despite working every day of the week, including public holidays. He also claimed that he was not paid a house allowance and that statutory deductions for NSSF and NHIF were not remitted. He urged the court to award him the reliefs he tabulated in his Memorandum of Claim.
13. The Claimant denied participating in a strike and maintained. He further testified that he was never invited to a disciplinary hearing nor issued with a termination letter.
14. On cross-examination by Counsel Achieng, the Claimant stated that he was employed by the 2nd Respondent as a loader and was paid according to tonnage at the rate of Kshs. 14 per tonne.
15. The Claimant denied participating in a strike. He denied any knowledge that there was no strike. He admitted that he was paid Kshs 11,000 at the Kakamega Labour Office after leaving employment.
16. On re-examination, the Claimant stated that at the labour office, he was not paid overtime, leave dues and house allowance.
17. At the close of the Claimant’s case, counsel for the 1st Respondent sought orders that the evidence of the 1st Respondent’s witness in Cause No. 105 of 2018 be applied to the present suit. The Court allowed the application, and the said evidence was accordingly adopted as part of the record in this matter.
18. Parties were then directed to file written submissions. The Claimant’s submissions are dated 21st February 2025 while the 1st Respondent’s submissions are dated 3rd February 2025. The 2nd Respondent did not file its submissions.
19. In his submissions, the Claimant asserted that he testified that he was sent away from work without being told the reason and without being accorded any hearing. The Claimant submitted that the purported invited to attend disciplinary hearing does not meet the requirements laid down by section 41 of the Employment Act.
20. On this basis, the Claimant urged the court to make a finding that he had discharged the burden of proving unfair termination of his employment by the Respondents.
21. The Claimant sought for an award as prayed for in his claim, costs and interests.
22. On its part, the 1st Respondent submitted that it was the Claimant and not the 1st Respondent who terminated the employment service, when the Claimant, towards the end of his contract willingly and without notice left his employment and only came back to sue the 1st Respondent in 2018. The 1st Respondent submitted that it had no reason to terminate the Claimant’s contract as the same had already automatically terminated.
23. Further, the 1st Respondent submitted that the Claimant in his testimony stated that he had a contract with the 1st Respondent for a period of 6 months. According to the 1st Respondent, no evidence in the form of NHIF statements or contracts was presented by the Claimant to show that he continued to work for the 1st Respondent after his contract had lapsed or that he even made a request for renewal to the 1st Respondent.
24. On whether the Claimant is entitled to the reliefs sought, the 1st Respondent submitted that the Claimant acknowledged and confirmed the non-renewal of his contract and further received all his dues in a timely manner without disputing the authenticity of the payroll cash listing produced by the 1st Respondent. Consequently, the 1st Respondent contends that nothing is owed to the Claimant.
25. In the end, the 1st Respondent prayed for the dismissal of the Claimant’s suit with costs.
DETERMINATION
26. Upon considering the pleadings herein, the evidence of the parties, the submissions and the authorities cited, I find that the issues for determination are: -
i. Whether the Claimant was an employee of the 1st Respondent or the 2nd Respondent
ii. Whether the Claimant’s contract lapsed by effluxion of time
iii. Whether the reliefs sought should issued
27. On the first issue, the 1st Respondent in its reply to the Statement of Claim denied that the Claimant was its employee. However, from the documents filed by 1st Respondent, particularly the engagement contracts from pages 2 to 8 of the Respondent’s documents and the payroll cash listings at page 10 of its list and bundle of documents, it is clear that the 1st Respondent had engaged the Claimant as a loader.
28. It therefore follows that the Claimant was the 1st Respondent’s employee.
Whether the Claimant’s contract lapsed by effluxion of time
29. The Claimant in his testimony and in the witness statement he adopted in court as part of his evidence stated that he was terminated from employment on 2nd May 2017 without notice.
30. On the other hand, the 1st Respondent has maintained that the Claimant’s contract lapsed by effluxion of time.
31. In the 1st Respondent’s list of documents at page 2, the 1st Respondent attached a six-month engagement contract which indicates that the Claimant’s employment contract was to lapse on 1st May 2017. This therefore means that the Claimant was not an employee of the 1st Respondent as at 2nd May 2017 when the events giving rise to this claim are alleged to have occurred.
32. It is trite law that fixed-term contracts terminate automatically by effluxion of time. The Court of Appeal in the case of Francis Chire Chachi v Amatsi Water Services Company Limited, [2012] eKLR the court stated as follows: –
“This court has recently stated that employers are not under any obligation to give employees reasons for non-renewal of fixed term contracts, unless there is such an obligation created in the expiring contract.”
33. Similarly, in the case of The Registered Trustees De La Salle Christian Brothers T/A St. Mary’s Boys’ Secondary School v Julius D. M. Baini [2017] eKLR, the Court of Appeal observed as follows:-
“It is our finding that the respondent''s contract ended on 31st December, 2014. There was no obligation on the appellant to give notice of expiry or information that it would not be renewed. We find no firm evidence that there was either an extension of the expired contract or a commencement of a new one. Nor is there firm evidence that the respondent worked for one week in January 2015. There was therefore no question of unfair termination of employment. The claim had no basis and ought to have been rejected.”
34. The Claimant’s employment having lawfully lapsed by effluxion of time on 1st May 2017, there was no subsisting employer-employee relationship between him and the 1st Respondent as at 2nd May 2017. Accordingly, any claim founded on events that occurred after the expiry of the contract lack merit. The Claimant’s suit is accordingly dismissed in its entirety.
35. There shall be no orders as to costs.
DATED, DELIVERED AND SIGNED
THIS 9TH DAY OF OCTOBER, 2025.
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