https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/398

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATE’S COURT AT NAKURU** **ELRC CASE NO. E256 OF 2023** **BETWEEN** **NDOIGA KIPLAGAT JOSEPH ............................................................. CLAIMANT** **VERSUS** **WONDER FEEDS LIMITED............................................................ RESPONDENT** **JUDGMENT** 1. The Claimant instituted the present claim alleging that the Respondent unlawfully and unfairly terminated his employment. The Claimant further alleges that throughout his employment he was underpaid, worked overtime without adequate compensation and was denied annual leave. 2. The Respondent denies the claim and maintains that the Claimant was employed under a series of fixed-term contracts voluntarily executed by both parties. Its the Respondents contention that the Claimant’s employment came to an end upon the expiry of the last contract and not through termination by the employer. The Respondent further avers that the claimant was paid in accordance with the contractual terms, that overtime worked was compensated and that the Claimant proceeded on annual leave on several occasions as demonstrated by leave records produced before the court. **Issues for Determination** 1. The court having considered the pleadings, evidence and submissions, the Court identifies the following issues for determination: 2. Whether the Claimant’s employment was permanent or based on fixed-term contracts. 3. Whether the Respondent unlawfully terminated the claimant’s employment and whether the contract came to an end upon expiry of the agreed term. 4. Whether the Claimant is entitled to the reliefs sought. **Analysis** 1. **Whether the Claimant’s employment was permanent or based on fixed-term contract** 2. The starting point of this claim is starred under Section 10 of the Employment Act,2007, which requires the terms of employment to be reduced into writing. The evidence before this Court demonstrates that the parties executed a series of written contracts each stipulating a definite commencement date and expiry date. 3. The Claimant admitted that he signed the contracts. He did not allege coercion, fraud, misrepresentation or mistake in execution thereof. Neither did he challenge the authenticity of the contracts produced by the Respondent. 4. The Court notes that a fixed-term contract is a lawful mode of employment recognized under Kenya labour Law. Such contract creates rights and obligations for a specific duration agreed upon by parties. The Court in ***Benard Wanjohi Muriuki vs Kirinyaga Water and Sanitation Company Ltd [2012],*** observed that parties are bound by terms of their contracts freely entered and courts should ordinarily give effect to such agreements unless they offend the law. Similarly, in ***Njuguna vs Policy Holders Compensation Fund (Statutory Manager, United Insurance Company) (Case e065 of 2022) [2024] KEELR 1673 (KLR) (28 JUNE 2024,*** where in agreeing that there is no obligation on the part of an employer to renew a fix-term contract, stated that: ***The Claimant has further submitted that non-renewal of his contract amounted to*** ***unfair******termination******for******being******in******breach******of******his******legitimate******expectation.******With******tremendous******respect****, I* ***hold otherwise. The mere fact that this contract has been renewed for six years did not create legal right under the doctrine of legitimate expectation. The Claimant knew all along that the contract of employment was for one year and in the end, it could be renewed or not.*** 1. The Court further notes that employment contracts like other contracts are governed by the principle of sanctity of contracts. Courts are reluctant to rewrite contracts for parties who voluntarily executed them. From the evidence presented, there is no indication that the Claimant was employed on permanent and pensionable terms. To the contrary, the documentary evidence demonstrates that his engagement was regulated by successive fixed-term contracts. The Court therefore finds and holds that the Claimant was employed under fixed-term contracts and not on permanent terms. 2. **Whether the Respondent unlawfully terminated the Claimant’s employment or whether the contract terminated upon expiry** 3. Having found that the Claimant was engaged under fixed-term contracts the next contention by the court is whether there was an unlawful termination. The Claimant asserts that his employment was unlawfully terminated. However, beyond the assertion itself, no evidence was placed before Court demonstrating that the Respondent prematurely terminated the contract before its expiry date. The Respondent’s evidence was the final contract simply ran its course and expired on the agreed date. 4. The Court has carefully examined the evidence and notes that no letters of dismissal, summary dismissal, termination notice, or disciplinary proceedings were produced by the Claimant. Equally, there is no evidence showing that the Respondent ended the employment relationship before the expiry of contract period. 5. The legal position regarding fixed-term contracts is now settled. Where parties agree on a definite period of employment, the contract naturally terminates upon the lapse of that period unless there exists a contractual or statutory obligation to renew. In ***Magret a. Ochieng vs National Water Conservation and Pipeline Corporation [2014] ,*** the Court held that expiry of a fixed-term contract does not amount to termination or dismissal and therefore does not ordinarily attract remedies for unfair termination. Likewise, in ***Registered Trustees of the Presbyterian Church of East Africa & another vs Ruth Ngotho-Kariuki [2017],*** the Court of Appeal stated that a fixed-term contract carries no automatic expectation of renewal unless such expectations is founded on express representation or consistent conduct of the employer. 6. Generally, employment disputes are governed by Sections 43,45 and 47(5) of the Employment Act. While an employer bears the burden of justifying termination, an employee must first establish the fact of termination. In the present case, the Court finds that the Claimant failed to establish that there was any termination by the Respondent. The evidence instead points to the expiry of the agreed contractual term. The Court therefore finds that the employment relationship came to an end through effluxion of time and not through unlawful termination. 7. **Whether the Claimant is entitled to the reliefs sought in the statement of claim** 8. **Compensation for Unfair and Unlawful Termination** 9. The principal order sought by the Claimant is compensation for alleged unlawful termination. The Legal foundation for compensation for unfair termination is found in Sections 45 and 49 of the Employment Act, 2007. Before such reliefs can be granted, a claimant must establish that there was a termination by the employer and that such termination was unfair either substantively or procedurally. 10. This Court has already found that the Claimant’s employment was governed by a fixed-term contract and that the employment relations came to an end upon the expiry of the final contract. The Court of Appeal in ***Registered* *Trustees* *of* *the* *Presbyterian* *Church* *of* *East* *Africa* *&* *another* *vs* *Ruth* *Gathoni* *Ngotho*- *Kariuki* [*2017*],** held that where parties enter into a fixed-term contract, the contract terminates automatically upon expiry of its terms and there is generally no obligation upon the employer to renew it unless such obligations is expressively provided for or can be inferred from the conduct of parties. Similarly, in ***Margret A. Ochieng vs National Water Conservation and Pipeline Corporation [2014],*** the Court held that expiry of fixed-term contract does not amount to termination and therefore cannot form the basis of a claim for unfair termination. 11. The Court finds no evidence demonstrating that the Respondent prematurely terminated the contract before its expiry date. Neither has the Claimant demonstrated the existence of a legitimate expectation of renewal. Accordingly, the prayer for compensation for unlawful termination is hereby declined. 12. **Claim for underpayment** 13. The Claimant further alleges that he was underpaid throughout his employment. Underpayment is a statutory claim which must be proved by reference to the applicable wage orders and the salary received by the employee. In ***Kenya Plantation & Agricultural Workers Union vs Roseto Flowers Limited [2013],*** the Court held that a claim for underpayment must be supported by evidence demonstrating the wage prescribed by law and the amount actually paid by the employer. 14. The Court notes that the Claimant voluntarily executed all employment contracts indicating the remuneration payable. During his entire period of employment, he didn’t lodge any complaint regarding the salary structure, nor did he produce evidence showing that the wages paid fell below the minimum statutory wage applicable to his job category. Most importantly, the Claimant did not place before the Court any computation showing the alleged underpayment, the applicable wage orders or the specific periods which such underpayments occurred. 15. The Court appreciates that failure to complain during employment does not necessarily extinguish an employee’s legal rights. However, where an employee alleges underpayment, the burden remains upon him to place before the Court sufficient evidence demonstrating the disparity between what was paid and what ought to have been paid. In the absence of such evidence, the Court finds that this claim has not been proved on a balance of probabilities and is accordingly dismissed. 16. **Claim for Overtime** 17. The Claimant alleges to have worked overtime and was not adequately compensated. Claims for overtime constitutes special claims capable of precise calculation and therefore require strict proof. In ***David Gichana Omuya vs Mombasa Maize Millers Ltd [2014],*** the Court held that overtime claims must be specifically pleaded and supported by evidence showing the actual hours worked more than the statutory limits. Similarly, in ***Rogoli Ole Manadiegi vs General Cargo Services Limited [2016],*** the Court emphasised that an employee seeking overtime compensation must prove the extra hours worked and provide a basis upon which the Court can calculate the amount claimed. 18. In the present case, the Claimant merely alleged that he worked overtime. He did not produce attendance registers, clock-in records, duty rosters, work schedules or any witness testimony corroborating the alleged extra hours worked. On the contrary, the Respondent led evidence during his cross-examination that whenever employees worked beyond working hours, compensation was provided. Although the Respondent did not produce comprehensive records of such compensations, the Claimant equally failed to demonstrate the extent of uncompensated overtime. Accordingly, the claim for overtime compensation fails. 19. **Claim for Annual leave** 20. The Claimant further contends that he never proceeded on annual leave during the entire period of employment. According to Section 28 of the Employment Act, every employee has the right to annual leave, while Section 74 obligates employers to maintain records relating to leave. 21. The Respondent produced leave records and were not challenged through cross-examination nor was evidence adduced to show that they were fabricated or inaccurate. In ***Josphine M.Ndambuki vs Mastermind Tobacco (K) Ltd [2018],*** the Court held that where an employer produces leave records showing that leave was taken, the burden shifts to the employee to demonstrate that the records are inaccurate. The Claimant failed to discharge the burden. The Court therefore finds that the claim for accrued leave is unsupported by the evidence therefore is dismissed. 22. **Claim for Public Holiday Pay** 23. To the extent that the Claimant alleges that he worked during public holidays without compensation, the Court notes that no specific public holidays were identified. The Claimant did not prove duty schedules, attendance records, payroll documents or witness testimony showing that he worked on public holidays. Therefore, this Court will rely with the decision in ***Banking Insurance & Finance Union (Kenya) vs Cooperative Bank of Kenya LTD [2015],*** which observed that claims relating to work performed on public holidays must be supported by evidence capable of verification. In the absence of such evidence, the Court finds that the claim remains unproven and must fail. 24. **Certificate of Service** 25. Section 51 of the Employment Act obligates an employer to issue a certificate of Service to an employee upon termination of employment lasted less than four consecutive weeks. The entitlement to a certificate of service is statutory and does not depend upon whether an employee succeeds in the substantive claim. A **certificate of service** was however produced by the Claimant himself as **CEXH. No. 8**, and I do find the prayer for certificate of service as unnecessary and illogical when the claimant himself has demonstrated that he was issued with one, upon the expiry of the contract here9n. the certificate is dated 8th July 2023. **Findings** 1. The Court is mindful that employment disputes are determined on a balance of probabilities. Sections 107 and 109 of the Evidence Act place the burden of proof upon the party who alleges a fact to prove its existence. 2. Many of the Claimant’s allegations remained bare assertions unsupported by documentary evidence. No witness was called to corroborate the alleged underpayment, denial of leave, overtime or unlawful termination. While the Court remains vigilant in protecting employees from unfair labour practices under Article 41 of the Constitution, such protection cannot relieve a litigant of the burden of proving his case. 3. In the final analysis, the Court finds that: 4. The Claimant was employed under fixed-term contracts. 5. The Employment relationship came to an end upon expiry of the agreed contractual terms. 6. The Claimant failed to prove unlawful or unfair termination. 7. The Claims for underpayment, overtime and unpaid leave were not proved. 8. Accordingly, the claimant’s suit is hereby dismissed. Considering the nature of the employment relationship and to preserve industrial harmony, each party shall bear its own costs. It is so ordered. **DATED, SIGNED AND DELIVERED AT...NAKURU VIRTUALLY....... THIS ..30TH . DAY OF ..JULY.... 2026** **HON ALOYCE PETER-NDEGE** **SENIOR PRINCIPAL MAGISTRATE** *In the presence of;* **Claimant’s Counsel: N/A** **Respondent’s Counsel: N/A** **Claimant: N/A**