https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1439

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT** **AT MOMBASA** *(Before Hon. Lady Justice Monica Mbarũ)* **CAUSE NO. E104 OF 2025** **HAGGAI KISHAWI CLAIMANT** *VERSUS* **CONTINENTAL AGVENTURE LIMITED RESPONDENT** **JUDGMENT** The respondent employed the claimant as a finance and accounts officer on 1 July 2024 on a 6-month contract. He was placed at the Mombasa office and put in charge of the finance and accounts at a salary of KSh. 109,625 per month. On 31 December 2024, the contract was renewed for 3 months from 1 January to 31 March 2025. At the end of the contract, the claimant negotiated a salary increase to Ksh. 172,186 per month. The claim is that there was an agreement between the claimant and the respondent to renew his contract for one year. However, on 18 July 2025, the employment was terminated without due process. He claimed that the respondent used misrepresentation in unlawfully terminating the employment. On 3 July 2025, the respondent issued a contract backdated to 1 April 2025 stipulating that it would lapse on 31 July 2025. He was advised to take annual leave, and upon his resumption of duty on 17 July 2025, he was told his employment would end at the end of the month. On 18 July 2025, the claimant was issued with a post-dated cheque for Ksh. 120,000 for his terminal dues. On 1 August 2025, the cheque's date, the claimant banked it, but it bounced. He returned it to the respondent. This resulted in unlawful and unfair termination of employment. The claimant is seeking the following: 1. July salary Ksh. 172,186. 2. Notice pay Ksh. 172,186. 3. 6 months' salary for unfair termination of employment, Ksh. 1,033,116. 4. 11 accrued leave days Ksh. 67,650. 5. Service pay for one year, Ksh. 86,093. 6. Costs of the suit. The claimant testified in support of his case that he worked diligently for the respondent under various contracts, the last of which ended on 31 March 2025. The respondent accused him of stealing from them, which was untrue, and no such matter was brought to his attention for him to address. The respondent alleged that he had issued forged receipts, but provided no evidence. He was not charged with stealing or forging a receipt. The claimant testified that on 18 July 2025, a report was made to Makupa Police Station alleging that the respondent had stolen from him. This was reported only on 28 August 2025, after his employment had terminated. The respondent had not filed any evidence in this regard. There was no disciplinary hearing in which the claimant could have defended himself. After the last contract, the claimant continued working until 18 July 2025, when he was issued a postdated cheque and his employment was terminated without due process or payment of terminal dues. Upon cross-examination, the claimant admitted that he signed the contract dated 1 April 2025, ending on 31 July 2025. He noted that it had been backdated. He did not complain and accepted the terms. At the time he took his annual leave days, as directed by the respondent, he had signed the contract. The claim admitted that he signed the Discharge Voucher without protests. His contract was due to end on 31 July 2025. He was issued a post-dated cheque, which the bank declined, and he returned it to the respondent. In response, the respondent admitted that the claimant was employed under a 3-month fixed-term contract, from 1 April to 31 July 2025. Previously, he was on a similar contract, and the employment relationship was based on written contracts. In July 2025, the claimant proceeded on his annual leave. On 18 July 2025, upon conciliation of accounts, terminal dues were tabulated in the presence of the claimant, and he signed a Discharge Voucher. The claimant requested to be paid in cash and to take up pending leave days before the end of his contract term. This was allowed. The parties agreed to cancel the postdated cheque since the terminal dues had been paid in full. Employment terminated as agreed in the term contracts, and the claims made are without merit and should be dismissed with costs. In evidence, the respondent, Islam Mohamed Islam, the director, testified that the claimant was employed as an accountant under fixed-term contracts that had expired. He signed each contract. At the end of employment, the claimant signed a discharge voucher in settlement of his terminal dues. He was issued a postdated cheque, but the claimant opted for cash; the cheque was cancelled. Islam testified that the claimant signed his last contract on 3 July 2025. It covered 3 months ending on 31 July 2025. He proceeded on annual leave, which ended on 19 July 2025, and was paid all his dues. The discharge voucher confirmed that the claimant had been paid in cash, and the postdated cheque was cancelled. Upon the end of employment, the respondent did reconciliation and noted that the claimant had stolen and forged receipts. This matter was reported to the police. This is pending police investigations. At the end of the hearing, the parties agreed to file written submissions. Only the respondent complied. **Determination** On the claim, the respondent and the written submissions by the respondent, the issues which emerge for determination are: Whether there was an unlawful and unfair termination of employment. Whether the remedies sought by the claimant are available. Who should pay the costs? The claimant asserts that he was under term contracts with the respondent until 31 March 2025, when he was tricked into signing a backdated contract dated 3 July 2025. This was unlawful and resulted in the unfair termination of employment on 18 July 2025. The respondent’s case is that the claimant was under a written contract as an accountant. Each contract ended, and the claimant was paid his terminal dues. He signed the discharge voucher and accepted his terminal dues paid in cash. The claims made are without merit. Indeed, under section 10(3) of the Employment Act (the Act), the employer has a duty to issue the employee with a written contract of employment. Even where such a written contract is not issued immediately, upon commencement of employment, the employer should issue the written contract within 2 months thereof pursuant to section 10(1) of the Act: 1. ***A written contract of service specified in section 9 shall state particulars of Employment which may, subject to subsection (3), be given in instalments and shall be given no later than two months after the start of employment.*** In this case, the claimant submitted his term contracts, one commencing on 1 July 2024, another on 1 January 2025, and another on 1 April 2025. The last contract was signed on 3 July 2025 and ended on 31 July 2025. The claimant was not tricked into signing the contract commencing on 1 April 2025. The respondent is protected under section 10(1) of the Act. The claimant signed the contract in protest and with the understanding that he accepted the terms and conditions, including the end date of 31 July 2025. A written contract that has a fixed term is lawful and valid, as held in [**Transparency International - Kenya v Omondi [2023] KECA 174 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/2023/174/eng%402023-02-17)**.** In **Theuri v Kadet Limited [2013] KEELRC 160 (KLR),** the court upheld the fact that the employer was justified in issuing a fixed-term contract due to the nature of employment and the duration the employee was to serve. In [**Simba Chai Savings** and **Credit Cooperative Society Limited & 3 others v Bii & another [2026] KEELRC 888 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/888/eng%402026-03-31)**,** the court emphasised that under a fixed-term contract, parties are bound under its terms and conditions. A fixed-term contract is therefore a lawful and legitimate mode of employment. At the end of the term, each party is at liberty to exit. The employer has no duty to issue an end notice. The employee also has no duty to report to work at the end of the term of the contract. In this case, employees were lawfully terminated in accordance with the agreed-upon terms and conditions. The claimant executed the term contract, which ended on 31 July 2025. Notice pay and compensation claimed are not available. Regarding the claim for the July 2025 salary, the claimant signed the discharge voucher dated 18 July 2025. The dues paid included Ksh. 172,186 is the salary for July 2025. He signed the discharge voucher to accept such payment. On the claim for 11 accrued leave days, the discharge voucher noted there were zero leave days due. The last day at work was 18 July 2025. The claimant took 11 days of leave in July 2025. Under section 28 of the Act, the employee is entitled to 1.75 leave days per month, or 21 leave days per year. Under clause 8 of the contract of employment, the claim had 1.75 days of leave each month. He already took 11 days in July 2025, which was in addition to the due leave days accrued under the 3-month term contract. The claim for 11 accrued leave days is not due. This was already exhausted. On the claim for service pay, this was not a benefit under the term contract. The discharge voucher indicated statutory payments. Service pay is not available. **The claims, as addressed, are without merit and are hereby dismissed. The claimant shall meet the costs due to the respondent.** **Delivered in open court this 28th day of May 2026.** **M. MBARŨ** **JUDGE** **In the presence of:** Court Assistants: Catherine, Kemboi and Omar ……………………………………………… and …………………………………..…………..