Consolidated Human Resource Solutions Limited v Kimuya (Employment and Labour Relations Appeal E073 of 2025) [2026] KEELRC 2306 (KLR) (29 July 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI** **ELRC APPEAL NO. E073 OF 2025** *(Before D. K. N. Marete)* **CONSOLIDATED HUMAN RESOURCE SOLUTIONS LIMITED….......APPELLANT** **VERSUS** **DUNCAN MUTUNGA KIMUYA………………………..………………..RESPONDENT** **JUDGMENT** This matter was originated by way of a Memorandum of Appeal dated 6th March, 2025. It is an appeal against a judgment delivered on 21st February, 2025 in Mavoko in CMELRC No. E077 of 2024: The appeal comes out thus; 1. *The Honourable Magistrate erred in law and in fact by failing to find that the Respondent’s fixed term contract terminated automatically on 25th December, 2022.* 2. *The Honourable Magistrate erred in law and in fact by failing to address her mind on whether the Respondent was employed under a fixed term contract and whether the said contract lapsed.* 3. *The Honourable Magistrate erred in law and in fact by finding that the Respondent’s basic salary plus house allowance amounted to Kshs. 18,731.00* 4. *The Honourable Magistrate erred in law and in fact by holding that the Appellant was required to prove the reasons for termination and the procedure followed in terminating the Respondent while the Respondent’s contract terminated due to expiry of time.* 5. *The Honourable Magistrate erred in law and in fact by finding that the Respondent was entitled to salary in lieu of notice.* 6. *The Honourable Magistrate erred in law and in fact by awarding the Respondent nine months’ salary as compensation for unfair termination.* 7. *The Honourable Magistrate erred in law and in fact by awarding the Respondent leave pay amounting to Kshs. 13,326.00* The Appellant prays thus; 1. *This appeal be allowed.* 2. *The judgment and the resultant decree of the Hon. Martha a. Nanzushi delivered on 21st February 2025 in ELRC Case Number E077 of 2024 be set aside and ins entirety and/or varied.* 3. *This court be pleased to substitute the decision of Hon. A. Martha A. Nanzushi delivered on 21st February, 2025 with a decision dismissing the Respondent’s claim.* 4. *The costs of this Appeal and lower court be awarded to the Appellant.* The Appellant’s case and submission is that in a first appeal this court must reconsider the evidence, evaluate it and draw its own conclusions, bearing in mind that it did not have the advantage of seeing and hearing the witnesses; both parties are agreed on this. This is observed in the celebrated authority of **Selle and Another v Associated Motor Boat Co. Ltd and Others [1968] EA 123.** The Appellant’s further case is that the Respondent was engaged on a fixed term contract of employment dated 27th June, 2022 for a period of six months, commencing 26th June, 2022 and expiring on 25th December, 2022. The Appellant contends that the contract was not terminated by any act of the employer but lapsed automatically by effluxion of time and accordingly, the statutory procedural requirements under Section 41 of the Employment Act, 2007 were inapplicable. The Appellant’s Human Resources Manager, Henly Murimi, testified that the Respondent was employed on a fixed term basis and that his contract lapsed upon expiry. During cross-examination, Mr. Murimi confirmed that the contract was to expire on 25th December, 2022 and that the Respondent’s last working day was 16th December, 2022 which he attributed to the client’s premises, Devki Steel Mills, closing for the December period. He stated that the Respondent was paid up to that last working date. In support of this position, the Appellant seeks to rely on the authority of **Samuel Chacha Mwita v Kenya Medical Research Institute [2014] eKLR**, where the court observed that a fixed term contract entered into for a specified period, with a stipulation that it would terminate automatically on the expiry date, terminates naturally without the proximate cause being an act of the employer. Such termination does not necessarily constitute a dismissal. The Appellant further relies on the Court of Appeal decision in **Transparency International Kenya v Teresa Carlo Omondi [2023] eKLR** which affirmed that the doctrine of legitimate expectation does not arise in the renewal of a fixed term contract and that non-renewal cannot constitute unfair termination or dismissal. Additionally, the Appellant cites **East Africa Sea Food Limited v Mwazito (Appeal E013 of 2020) [2023] KEELRC** where this court held that a finding that notice was required before the end of a self-executing fixed term contract was without legal foundation. The Appellant further submits that the Respondent failed to produce any documentary evidence in support of his claim that his contracts were on a yearly basis. The Respondent having asserted the existence of a one-year contract and having not produced any, the six-month contract tendered by the Appellant as Exhibit 1 must stand as the operative document. On the second issue, the Appellant submits that having not demonstrated unlawful termination, the Respondent is disentitled to the reliefs awarded by the trial court. On this reliance is placed on the authority of **Kennedy Otieno Odalo v Paper Converters (K) Limited [2018] eKLR** and **Registered Trustees of the Presbyterian Church of East Africa & Another v Ruth Gathoni Ngotho [2017] eKLR**. The Respondent’s case and submission is that he was never employed on the six-month fixed term contract produced by the Appellant. He testified that his employment with the Appellant commenced on 26th February, 2020 and that his contracts were on a yearly basis, the last of which was signed in February, 2021. He denied ever signing the said six-month contract as in the document produced in evidence by the Appellant as Exhibit 1. The Respondent’s account of events is that on or about 14th December, 2022 he requested two days off duty from the Appellant’s Human Resources department to travel to his rural home in Makueni County and that the request was duly granted. On or about 16th December, 2022 he reported back to work. He was summoned by his supervisor, a Mr. Andrew Wachira, who took him to the office of Mr. Murimi, the Human Resources Manager. Mr. Murimi informed him that his employment had been terminated for being absent from work without authorisation. No prior notice of contemplated termination was given, no show cause process was conducted, no representative was present, and no explanation was sought from him before the decision was communicated. The Respondent produced pay advice slips evidence in support of a gross monthly salary of Kshs. 18,731, comprising basic salary and house allowance which the Appellant did not contradict. He further testified that throughout his employment he was neither permitted to proceed on annual leave nor paid in lieu thereof. Critically, the Respondent submits that even on the Appellant’s own Exhibit 1, the contract did not expire until 25th December, 2022. The Respondent’s separation from employment occurred on 16th December, 2022 nine days before the contractual expiry date. The Appellant’s own witness, Mr. Murimi, confirmed this in cross-examination. Accordingly, what occurred on 16th December, 2022 was not a natural expiry but a premature termination, to which the procedural requirements of Section 41 of the Employment Act, 2007 applied. The Respondent relies on **Alphonse Maghanga Mwachanya v Operation 680 Limited [2013] eKLR** on the mandatory nature of those procedural obligations. He urges this court to dismiss the appeal with costs. This is a first appeal. The mandate of this court is to re-evaluate the evidence on record and arrive at its own independent conclusions while bearing in mind that it did not have the advantage of seeing and hearing the witnesses testify. This is enunciated in the authority of **Peters v Sunday Post [1958] EA 424 and Selle and Another v Associated Motor Boat Co. Ltd and Others [1968] EA 123.** After a considered look and scrutiny of the Memorandum of Appeal, the Record of Appeal and the submissions of the parties the following issues come out for determination; 1. Whether the Respondent’s employment was lawfully separated by effluxion of time or whether he was prematurely and unlawfully terminated. 2. Whether the reliefs awarded by the lower court were warranted. The parties position on this are diametrically opposed. On the 1st issue for determination as to whether the Respondent’s employment was lawfully separated by effluxion of time or whether he was prematurely and unlawfully terminated, the Appellant produced a six-month fixed term contract of employment as Exhibit 1, bearing a commencement date of 26th June, 2022 and an expiry date of 25th December, 2022. The Respondent denied signing this document and maintained that his contracts were on a yearly basis. The trial court found that the Respondent was employed by the Appellant, relying primarily on payslip evidence which the Appellant did not challenge, and noted that the Appellant had not discharged its obligation under Section 74 of the Employment Act to maintain proper employment records. The Appellant’s contention that the Respondent did not produce a one-year contract in evidence is true. However, the Respondent’s obligation was to establish that he was employed and that his employment was terminated, not to disprove a document whose signature he denied. The Respondent produced payslip evidence, testified to the duration and conditions of his employment from 2020 and gave a coherent account of the events of December, 2022. The Appellant produced a contract whose execution is disputed and offered no corroborating employment records. This court is not persuaded, on the balance of probabilities, that the six-month contract accurately reflects the entirety of the employment relationship. On the second and determinative point, this court accepts the Respondent’s submission and finds it to be dispositive of the appeal. The Appellant’s own Exhibit 1 provides that the contract was to expire on 25th December, 2022. The Appellant’s own witness, Mr. Murimi, confirmed during cross-examination that the contract’s expiry date was 25th December, 2022 and equally confirmed that the Respondent’s last working day was 16th December, 2022. Whatever explanation Mr. Murimi offered for this nine-day discrepancy, the legal consequence is plain: the Respondent was separated from employment on 16th December, 2022 nine days before his contract, if at all, was due to expire. The Appellant’s reliance on **Samuel Chacha Mwita v Kenya Medical Research Institute [2014] eKLR**, **Transparency International Kenya v Teresa Carlo Omondi [2023] eKLR**, and **East Africa Sea Food Limited v Mwazito (Appeal E013 of 2020) [2023] KEELRC** does not advance its case. Each of those authorities addresses the scenario where a fixed term contract runs to and expires upon its contractual date. That is not the situation here. The contract had not yet expired when the Respondent’s employment was brought to an end. This is not effluxion of time. It is a premature termination nine days before the contractual expiry. The authorities invoked by the Appellant are therefore inapplicable to the facts of this case. The law governing the premature termination of a fixed term contract is equally settled. In **Alphonse Maghanga Mwachanya v Operation 680 Limited [2013] eKLR**, the court held that the procedural requirements of Section 41 of the Employment Act, 2007 apply to all categories of employment contracts including fixed term contracts and that to comply with those requirements an employer must explain the reasons for the contemplated termination to the employee in a language the employee understands, allow a representative to be present, and hear and consider the employee’s response. A mere letter of termination, or a bare communication of the outcome, does not suffice. In the present case, the Respondent’s uncontroverted testimony is that he was summoned, taken to the HR Manager’s office and informed that his employment had been terminated for absence without authorisation. No prior notice of contemplated termination was given. No show cause letter was issued. No representative was present. No hearing was conducted. There is no evidence of any disciplinary process whatsoever. The termination was procedurally deficient in every material respect. The trial court was right in so finding. On the 2nd issue for determination, that is whether the reliefs awarded by the lower court were warranted, the Appellant challenges the salary figure, the notice pay, the quantum of compensation and the leave pay. This court has considered each head of the award.. On the salary figure, the Respondent produced payslip evidence supporting a gross monthly salary of Kshs. 18,731 comprising basic salary and house allowance. The Appellant produced no payroll records to the contrary. The trial court’s finding on the applicable salary is upheld. On the one month’s notice pay, having found the termination to be unlawful and the Respondent having been remunerated at a monthly rate, the award is warranted under Section 35(1)(c) of the Employment Act, 2007. The statutory entitlement to notice arises by operation of law and independently of the disputed Exhibit 1, and nothing in the Appellant’s case displaces it. This award is upheld at Kshs. 18,731.00. On nine months’ compensation, the lower court relied on **James Kabengi Mugo v Syngenta Africa Limited [2013] eKLR** in arriving at nine months rather than the statutory maximum of twelve. The Respondent was employed from February, 2020 to December, 2022 a period of approximately two years and ten months. Having regard to the length of service, the nature of the termination and the factors enumerated in Section 49(4) of the Employment Act, 2007 an award of nine months’ compensation is proportionate and well within the court’s discretion. This award is upheld at Kshs. 168,579.00 On leave pay, the Respondent’s evidence that he was never permitted to proceed on annual leave throughout his employment was not effectively challenged. The lower court computed leave pay at Kshs. 6,663.00 per year based on the June, 2022 payslip for two provable years of service, arriving at Kshs. 13,326.00. There is no basis to interfere with this computation. The award is upheld. Having re-evaluated the evidence on record and considered the submissions of the parties as well as the applicable law, it is the court’s finding that this appeal is lacking in merit. The central pillar of the Appellant’s case, namely that the Respondent’s fixed term contract lapsed by effluxion of time, is contradicted by the Appellant’s own exhibit and their witness. The contract expired on 25th December, 2022. The Respondent was separated on 16th December, 2022. The separation was a premature termination, not an expiry. The procedural requirements of Section 41 of the Employment Act, 2007 were not complied with. The lower court’s findings were well-founded and are upheld. I am therefore inclined to dismiss the appeal with costs to the Respondent. Delivered, dated and signed this **29th** day of **July** 2026. **D. K. Njagi Marete** **JUDGE** Appearances: 1. Mr. Mbabu instructed by Mwaniki Gachoka & Co. Advocates for the Appellant. 2. Mr. Maina instructed by Eboso & Company Advocates for the Respondent.