REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT MOMBASA
APPEAL NO.E044 OF 2024
RAJAB JEFWA KATANA …………. APPELLANT
VERSUS
TARMAL WIRE PRODUCTS LIMITED ……… RESPONDENT
[Being an appeal from the judgment of Hon. L Sindani in Mombasa CMELRC No. E530 of 2022 delivered on 14 March 2024]
JUDGMENT
The appeal arises from the judgment delivered on 14 March 2024 in Mombasa CMELRC No.530 of 2022. The appellant is seeking that the judgment be set aside and a fresh judgment be issued in favour of the appellant based on facts and the law with costs.
The appellant filed the Record of Appeal only. There are no written submissions.
The appeal is on 6 grounds that;
- The learned magistrate misdirected herself in law and fact and applied wrong principles of law in finding that the appellant’s employment ended by effluxion of time without taking into account the fact that the appellant, if he was employed under short term contracts, had a legitimate expectation that his contract of employment would be renewed as before since he was not served with any notice of non-renewal of his contract of employment as required by law and despite the respondent admitting that the appellant worked continuously from 26 February 2014 to 16 February 2022.
- The learned magistrate misdirected himself in law and fact and applied wrong principles of law in finding that the appellant was employed by the respondent on a short-term contract of employment despite the respondent failing to call any expert witness to prove that the signatures and thumbprints appended in the short term contracts and leave forms were indeed signed by the appellant.
- The learned magistrate erred in law and fact and misdirected herself in the application of Section 47(5) of the Employment Act in shifting the burden of justifying the grounds for the termination of employment or wrongful dismissal to the appellant instead of the respondent.
- The learned magistrate erred in all and fact in failing to find that the appellant’s dismissal from employment ought to have been both procedurally and substantively fair in accordance with sections 43, 44 and 45 of the Employment act.
- The learned magistrate disregarded the overwhelming evidence tendered by the appellant to prove that he was entitled to terminal dues upon unlawful dismissal from work as enshrined in section 49 of the Employment Act.
- That the learned magistrate disregarded the submissions made by the appellant on both law and facts.
Only the appellant attended court on 9 July 2024 to take hearing directions. The court directed the appellant to address the appeal by way of written submissions, serve the respondent to allow them a right of reply and attend court on 24 September 2024 to confirm compliance.
On the due date, there was no compliance.
On the record, there is no evidence that the respondent was served with the appeal.
Determination
On the legal issues addressed by the appellant, the trial court judgment delivered on 14 March 2024 is faulted on the basis that the learned magistrate erred in finding that the appellant’s employment ended by effluxion of time. The appellant’s case is that he was employed under short-term contracts and had a legitimate expectation that his contract of employment would be renewed as before since he was not served with any notice of non-renewal of his contract of employment as required by law and despite the respondent admitting that the appellant worked continuously from 26 February 2014 to 16 February 2022.
Indeed, in his Memorandum of Claim, the appellant’s case was that he was employed as a general labourer on 26 February 2014 at a wage of Ksh.9, 664 per month. He worked until 16 February 2022 when the respondent terminated his employment without due process. He was not paid his terminal dues and claimed the following;
- Notice pay Ksh.9,664;
- House allowance for 107 months Ksh.155,107.20;
- Unpaid leave days for 8 years Ksh.109,720.80;
- Underpayments for 107 months Ksh.481,252.30;
- Unpaid overtime for 107 months Lsh.389,373;
- 12 months compensation Ksh.115,968;
- Service pay for 8 years Ksh.38,656;
- Unpaid NHIF for 107 months Ksh.53,500;
- Certificate of service;
- Costs of the suit.
In response, the respondent admitted that the appellant was employed as a general labourer from December 2014 on a distinct fixed-term contract the last contract being for 3 November 2022 to 3 February 2022 at a consolidated wage of Ksh.9,664 per month. The parties agreed to mutually terminate the contract on 3 February 2022. The prayer for notice pay is not based on law and the wage paid was inclusive of house allowance. The appellant took his annual leave as evidenced by the leave application forms. There was no underpayment, the general wage was Ksh.8, 327 and a house allowance was allocated. There is no evidence that there was overtime work and there was payment of statutory dues and the claims made should be dismissed.
The trial court in the judgment found the claims made without merit and dismissed them with no orders on costs, save, the appellant being issued with a Certificate of Service.
The fact that fixed-term employment contracts regulate the employment relationship between the parties is not contested. The issue is that the appellant had legitimate expectations that his fixed-term contract ending on 3 February 2022 would be renewed as had been done over time.
The issuance of a fixed-term contract is lawful and legitimate. Section 10(3) of the Employment Act allows an employer to issue a fixed-term contract with a start and end date. Upon its expiry, the employer has no legal duty or requirement to issue notice or renew it.
In the case of Mbatia v Kirinyaga Water & Sanitation Company (KIRIWASCO)) (Employment and Labour Relations Cause 851 of 2022) [2023] KEELRC the court held that the fact of having a previous contract being renewed is not sufficient justification for claiming a legitimate expectation that this would be the norm concerning future contracts. Each contract ended on its terms.
In the case of Kenya Revenue Authority v Export Trading Company Limited (Petition 20 of 2020) [2022] KESC the Supreme Court held that;
A legitimate expectation arises where a person responsible for taking a decision has induced in someone a reasonable expectation that he will receive or retain a benefit of advantage.
In the case of National Water Conservation & Pipeline Corporation v Jayne Kanini Mwanza, Civil Appeal No. 178 of 2014 (UR), the Court held that;
The general principle, as we understand it, is that a fixed term contract will terminate on the sun set date unless it is extended in terms stated in the contract. A court cannot rewrite the terms of a contract freely entered into between the parties. Once there is a written contract, the court will seek to give meaning to such contract giving ordinary meaning to its terms in determining any issue that may arise.
… Termination of fixed term contracts has received judicial consideration by the Industrial Court. In Bernard Wanjohi Muriuki vs Kirinyaga Water and Sanitation Company Limited & Another [2012] eKLR the court held as follows:-
“In the view of the Court, there is no obligation on the part of an employer to give reasons to an employee why a fixed-term contract of employment should not be renewed. To require an employer to give reasons why the contract should not be renewed, is the same thing as demanding from an employer to give reasons why, a potential employee should not be employed. The only reason that should be given is that the term has come to an end, and no more. … Reasons, beyond effluxion of time, are not necessary in termination of fixed-term contracts, unless there is a clause in the contract, calling for additional justification for the termination.”
In the case of Masiga & 15 others v Menengai Farmers Limited (Civil Appeal E069 of 2021) [2022] KEELRC, the court held that parties to a fixed term contract have the liberty to agree on a start and end date of the employment relationship.
In this case, the appellant cannot claim outside the fixed-term contract he enjoyed with the respondent. The trial court cannot be faulted in its findings.
On the appeal that the trial court failed to call an expert witness with regard to the signatures of the fixed-term contracts, this was not an issue before the trial court. Being an issue of fact, the appellant ought to have addressed it before the trial court for a determination.
Upon cross-examination by the respondent, the appellant admitted that he was served with a contract on 22 November 2022 and never denied signing the contract. Hence, the appellant did not deny the contract and records filed by the respondent.
There was no requirement of the trial court to make a determination on the signatures on the contract or the leave application forms.
The employment between the parties was hence regulated under the fixed term contract which was produced, the appellant failed to establish a prima facie case of unfair termination of his employment to allow the respondent to justify the reasons thereof under Section 47(5) and 43 of the Employment Act respectively.
Employment terminated by effluxion of time under the fixed term contract. This is lawful no claim for notice of compensation is due.
The claims made for service pay, underpayment, house allowance, and leave pay were all assessed and analyzed based on the due minimum wage and what was allocated under the fixed-term contract and these claims were dismissed. These claims were re-evaluated by this court, the basis of the claims and the fact that the appellant was working in Mazeras, the findings by the trial court cannot be faulted.
Accordingly, the appeal is without merit and is hereby dismissed. The respondent did not attend. No orders on costs.
Delivered in open court at Mombasa on this 11 day of October 2024.
M. MBARŨ
JUDGE