[2023] KEELRC 2660 (KLR)
The court found that the claimant was employed under a fixed term contract, which expired on 31.12.2015. The claimant failed to provide evidence of employment outside the exhibited contract. The separation was not a termination but a lawful expiry of the contract by effluxion of time. Consequently, the claimant was...
Source-derived case information.
- Citation
- [2023] KEELRC 2660 (KLR)
- Parties
- Claimant: Paul Handa Odhiambo; Respondent: Tononoka Rolling Mills Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 683 of 2018
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- suit dismissed with costs to the respondent
- Judges
- B Ongaya
- Legal Topics
- Fixed Term Contracts, Unfair Termination, Notice Pay, Service Gratuity, Annual Leave, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Handa Odhiambo
Claimant
Tononoka Rolling Mills Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant was employed under a valid contract of service.
- 2 Whether the separation of the claimant from employment was unfair termination or lawful expiry of contract.
- 3 Whether the claimant is entitled to remedies including notice pay, gratuity, annual leave, and compensation.
Ratio Decidendi
The court found that the claimant was employed under a fixed term contract, which expired on 31.12.2015. The claimant failed to provide evidence of employment outside the exhibited contract. The separation was not a termination but a lawful expiry of the contract by effluxion of time. Consequently, the claimant was not entitled to notice pay or compensation for unfair termination. Claims for annual leave and gratuity were also dismissed as the claimant did not specify the period for leave and was a member of NSSF, barring gratuity under the Employment Act. The respondent succeeded, and the suit was dismissed with costs to the respondent.
Court Disposition
suit dismissed with costs to the respondent
Orders
- The claimant's suit is dismissed.
- The claimant shall bear the costs of the suit.
Full Case Text
Judgment text and source record
22 paragraphs
Odhiambo v Tononoka Rolling Mills Limited (Cause 683 of 2018) [2023] KEELRC 2660 (KLR) (30 October 2023) (Judgment)
Neutral citation: [2023] KEELRC 2660 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Nairobi
Cause 683 of 2018
B Ongaya, J
October 30, 2023
Between
Paul Handa Odhiambo
Claimant
and
Tononoka Rolling Mills Limited
Respondent
Judgment
1. The claimant filed the memorandum of claim on 09. 05. 2018 through Kuyoh & Company Advocates. The claimant’s case is pleaded as follows. The respondent employed the claimant as a casual worker. The date of employment is not stated. The claimant alleges his performance was outstanding and within no timer, his basic salary was reviewed upwards to Kshs.17, 886. 00. Further, on 05. 01. 2016 unfairly terminated his services. He was not given a notice or pay in lieu of notice. The claimant claimed a month’s notice Kshs.17, 886. 00; two years’ service gratuity Kshs.8,800. 00; annual leave Kshs.9, 540 and unpaid salary Kshs.22, 400 making a total of Kshs.58,626. 00. The claimant prayed for that amount plus Kshs.214,632. 00 being 12 months’ salary compensation; aggravated damages; and costs.
2. The memorandum of defence was filed on 03. 07. 2013 through Nyaencha Waichari & Company Advocates. The respondent’s case was that the claimant was employed on fixed term contracts which were explained to the claimant prior to the signing. The last contract was running from 01. 07. 2015 to 31. 12. 2015 and upon its expiry it was not renewed. The final dues were paid with his final salary per the exhibited final pay slip. All his salary was as well paid at the time of separation. The separation was lawful and the respondent prays that the suit be dismissed with costs.
3. The reply to response was filed on 24. 07. 2018 stating the defence amounted to general denials.
4. The claimant testified to support his case. The respondent’s witness (RW) was the Human Resource Manager, Elsa Okumu. Final submissions have been filed for the parties. The Court has considered all the material on record and returns as follows.
5. To answer the 1st issue, parties were in a contract of service. The claimant denied signing the contract of employment exhibited for the respondent for the period 01. 07. 2015 to 31. 12. 2015. On his part he did not plead the date he was employed and he provided no evidence of the fact of employment. On a balance of probability, there is no reason to doubt that he signed the contract of employment. The Court returns that the employment relationship was governed by the contract of service exhibited for the respondent and the submissions made for the respondent in that regard are upheld.
6. The 2nd issue is whether the separation was unfair. The exhibited contract was lapsing on 31. 12. 2015. The claimant testified that he was paid full salary for December 2015. He pleaded that on 05. 01. 2016 he was informed the employment had been terminated. The Court returns that in absence of any other material, the contract of service lapsed by effluxion of the contractual tenure. The claimed notice did not apply as the separation was for nothing but for the agreed tenure lapsing and as urged for the respondent. Notice pay would not be due because the contractual term lapsed as per RW’s testimony. The allegations of unfair termination and claimed compensation are found unjustified.
7. The 3rd issue is on remedies. The October 2015 payslip shows the claimant was paid each day worked including overtime. The days and period for which leave pay is claimed were not specified in pleadings and shown by evidence. The Court declines that prayer. The claimant was a member of NSSF and gratuity is not due in absence of a contractual provision and provisions of section 35 of the Employment Act, 2007- apply to bar the award. The claimant should be liable in costs as the respondent has succeeded.In conclusion judgment is hereby entered for the respondent against the claimant for dismissal of the suit with costs.
SIGNED, DATED AND DELIVERED BY VIDEO-LINK AND IN COURT AT NAIROBI THIS MONDAY 30TH OCTOBER, 2023. BYRAM ONGAYAPRINCIPAL JUDGE