https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1984

REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT MOMBASA ELRC APPEAL NO. E058 OF 2025 WELDCON ENGINEERING & CONSTRUCTION LIMITED ......................................................................... APPELLANT **VERSUS** CYRUS JUMBA JETETE .............................................RESPONDENT *(Being an appeal from the Judgment and Decree of Hon. L. K. Sindani, Principal Magistrate, delivered on 6th March 2025 in Mombasa CMELRC Cause No. E406 of 2023)* JUDGMENT **A. INTRODUCTION AND BACKGROUND** 1. This is a first appeal. It arises from the Judgment and Decree of the Honourable L. K. Sindani, Principal Magistrate, delivered on 6th March 2025 in Mombasa CMELRC Cause No. E406 of 2023. By that Judgment, the trial court entered judgment for the Claimant against the Respondent, declaring the termination of the Claimant's employment unfair and unlawful, and awarding him compensation and terminal dues totalling Kshs. 170,352/=, together with interest and costs. 2. Aggrieved by that decision, the Respondent below, Weldcon Engineering & Construction Limited, preferred the instant appeal by a Memorandum of Appeal dated 29th March 2025 and filed on 4th April 2025. 3. For clarity, and to avoid confusion occasioned by the change of designations on appeal, the parties are referred to in this Judgment by the capacities they held in the trial court. The Appellant, Weldcon Engineering & Construction Limited, was the *Respondent* (the employer) below, and the Respondent, Cyrus Jumba Jetete, was the *Claimant* (the employee) below. **B. THE CASE BEFORE THE TRIAL COURT** 4. By a Statement of Claim dated 12th July 2023, the Claimant sued the Appellant, contending that at all material times he was a permanent employee of the Appellant, serving as a storekeeper. He averred that he had served the Appellant continuously for a period of about eight (8) years, from February 2016 until May 2023, when the employer-employee relationship was brought to an end on a five (5) days' verbal notice, in a manner he contended was contrary to the Employment Act, 2007. He asserted that by dint of the continuous service, and by operation of the law, his employment had converted to permanent employment, entitling him to the protection of fair procedure and a valid reason before termination. He prayed, among other reliefs, for compensation for unfair termination, one month's salary in lieu of notice, unpaid leave, commuter allowance and disturbance allowance, the claim being cumulatively in the sum of Kshs. 822,040/=. 5. The Appellant filed a Response to the Statement of Claim and resisted the claim. Its case was that the Claimant was indeed its employee and served as a storekeeper, but that he was engaged strictly on fixed-term contracts which lapsed automatically by effluxion of time and were not automatically renewable, renewal being dependent upon the availability of work, that is, incomplete or new projects, having regard to the project-based nature of the Appellant's business. The Appellant maintained that the contract in force at the material time was the extension of the contract dated 15th December 2022, carrying an in-built expiry date of 31st May 2023, upon which the employment came to a natural end. 6. The Claimant testified in support of his claim and adopted his witness statement. The Appellant called one witness, its Human Resource officer, who adopted his witness statement and produced the Appellant's bundle and supplementary bundle of documents, including the contracts of service and the letters of extension. During cross-examination, the Claimant, upon being shown the contract of employment dated 15th December 2022 (to run from 3rd January 2023 to 31st January 2023) and the letter of extension of 31st January 2023 (extending the contract to 31st May 2023), alleged that the signatures thereon and on the leave forms were forged. It is common ground on the record that the allegation of forgery was neither pleaded nor supported by any oral or documentary evidence. **C. THE DECISION OF THE TRIAL COURT** 7. Upon evaluating the pleadings, the evidence and the submissions, the learned trial Magistrate framed for determination the questions whether the Claimant was a permanent employee, whether he was unlawfully terminated, and whether he was entitled to the remedies sought. 8. The trial court found that the Appellant had produced a contract dated 3rd February 2016 which ended on 31st December 2016, and a further contract dated 15th December 2022, executed on 3rd January 2023, which was to end on 31st January 2023 and was thereafter extended by a letter of extension to 31st May 2023. The court noted the earlier letters of extension dated 30th September 2022, 31st August 2022 and 31st July 2022. The trial court held that the Appellant had not produced records showing the terms of the Claimant's service between December 2016 and January 2023, and that the letters of extension had no contractual basis because the underlying contract they purported to extend had not been produced. 9. From that premise, the trial court reasoned that, for the period between December 2016 and January 2023, the Claimant had worked without a contract document; that the one-month contract subsequently issued in 2023 and the extension thereafter were issued merely to circumvent the law; and that the last contract was issued to constructively terminate the Claimant unlawfully, his service having, in the court's view, already converted into permanent employment which required the operation of the law before termination. The trial court relied on Kenyatta University v Maina [2022] KECA 1201 (KLR) and West Kenya Sugar Company Limited v Dominiko [2025] KEELRC 357 (KLR), holding that it was unfair labour practice for the Appellant to issue a fixed-term contract to the Claimant after he had worked for over one year without a contract. 10. In the upshot, the trial court found that the Claimant had been unfairly and unlawfully terminated, and entered Judgment for him in the following terms: (a) a declaration that the termination was unfair and unlawful; (b) compensation for unlawful termination equivalent to five (5) months' salary, being Kshs. 141,960/=; (c) one month's pay in lieu of notice, being Kshs. 28,392/=; making a total award of **Kshs. 170,352/=**; (d) interest on the total award at court rates from the date of Judgment until payment in full; and (e) costs of the suit. The claims for unpaid leave, commuter allowance and disturbance allowance were declined. **D. THE GROUNDS OF APPEAL** 11. The Appellant's Memorandum of Appeal dated 29th March 2025 sets out six (6) grounds of appeal, namely that the learned trial Magistrate erred in law and in fact: i) By taking into account irrelevant factors thus arriving at totally wrong conclusions; ii) By applying wrong principles and thereby arriving at a totally erroneous conclusion; iii) By totally ignoring and failing to consider the evidence adduced by the Appellant herein; iv) By holding that the Respondent (Claimant) was a permanent employee; v) By holding that the Respondent's (Claimant's) termination was unfair yet it was evident that his fixed term contract had expired; and vi) By misapprehending the evidence on record and thereby arriving at totally wrong conclusions. 12. The Appellant prayed that the Judgment and Decree of the trial court be set aside in their entirety and the appeal be allowed with costs. **E. SUBMISSIONS OF THE PARTIES** ***The Appellant's Submissions*** 13. The Appellant filed written submissions dated 14th October 2025. Reminding the court of its duty, as a first appellate court, to re-consider, re-evaluate and re-analyse the evidence and to arrive at its own conclusions, while bearing in mind that it neither saw nor heard the witnesses, the Appellant relied on Selle v Associated Motor Boat Co. [1968] EA 123 and Mbogo v Shah [1968] EA 93. It was submitted that the Respondent was never terminated, but that his material contract of employment expired by effluxion of time on 31st May 2023; that the only relevant contract was the subsisting one dated 15th December 2022 as extended to 31st May 2023; and that the trial court erred in disregarding it in favour of extraneous considerations. The Appellant contended that the allegation of forgery was neither pleaded nor proved, and that a fixed term contract carries no rights, obligations or expectations beyond its expiry, relying on Registered Trustees of the Presbyterian Church of East Africa & another v Ruth Gathoni [2017] eKLR and Margaret A. Ochieng v National Water Conservation and Pipeline Corporation [2014] eKLR. ***The Respondent's Submissions (Grounds of Opposition)*** 14. The Respondent filed written submissions dated 15th October 2025 opposing the appeal and urging that it be dismissed with costs and the trial court's Judgment upheld. The Respondent submitted that this being a first appeal, the trial court's findings were sound in law and fact and ought not to be disturbed. It was contended that the undisputed continuous service from 2016 to May 2023, corroborated by the NSSF records, together with the Appellant's failure to produce contracts covering the period December 2016 to January 2023, properly led the trial court to the conclusion that the employment had converted to permanent employment. The Respondent argued that the grant of annual leave in excess of the statutory twenty-one (21) days was inconsistent with genuine short term engagements, and that the successive contracts were a device to circumvent the protections of the law. Reliance was placed, among others, on West Kenya Sugar Company Limited v Dominiko [2025] KEELRC 357 (KLR), Kenyatta University v Maina [2022] KECA 1201 (KLR), Ongubo v Nyangena Hospital Ltd [2025] KEELRC 1279 (KLR), and the line of authority on legitimate expectation, including Abdulrahman Omar v Kenya Red Cross [2018] eKLR and Keen Kleeners Limited v Kenya Plantation and Agricultural Workers' Union [2021] KECA 352 (KLR). The Respondent maintained that the termination was constructive, without reason or procedure, contrary to Sections 41 and 45 of the Employment Act, and that the remedies awarded were equitable. **F. ANALYSIS AND DETERMINATION** 15. I have carefully considered the Record of Appeal, the Memorandum of Appeal, the rival submissions and the authorities cited. This being a first appeal, I am alive to my mandate to re-evaluate the evidence tendered before the trial court afresh and to draw my own conclusions, while giving due allowance to the fact that, unlike the trial Magistrate, I did not have the advantage of seeing and hearing the witnesses as they testified. This is the well-settled principle in Selle v Associated Motor Boat Co. [1968] EA 123. Equally, I bear in mind that an appellate court will not lightly interfere with the findings of the trial court unless it is shown that the court below misdirected itself, acted on wrong principles, took into account matters it ought not to have, or failed to take into account matters it ought to have, and thereby arrived at a wrong conclusion. 16. The grounds of appeal, though couched as six, collapse into a single substantive controversy, namely: whether the learned trial Magistrate erred in finding that the Claimant's fixed term engagement had, by operation of the law, converted into permanent employment, such that his termination fell to be tested against the fairness requirements of Sections 41, 43 and 45 of the Employment Act, or whether the employment simply came to an end by effluxion of time upon the expiry of the last fixed term contract. I now turn to that question. 17. It is not in dispute that the Claimant served the Appellant as a storekeeper over a substantial period, and that the relationship was, at various times, governed by written fixed term contracts and by letters extending those contracts. The pivotal documents are the letters of extension. On a careful reading of those letters, the term or contract extension letters throughout indicated the pendency of the extended engagement and stipulated that the terms of the previous contract were to be maintained during the extended period. Given the express and unequivocal manner in which the letters were couched, there would be no need to redo or execute fresh agreements whenever there was an extension. It is imperative to note, in this regard, that the Respondent himself admits that the new manager could extend the contracts by letter rather than by fresh employment contracts, and that the Respondent signed the letters. 18. The contract whose terms were continuously imported into the extended periods was the very initial contract. Although the letters of extension do not, in express terms, state as much, in the circumstances of this matter that position can safely be implied. To hold otherwise, as the learned trial Magistrate did, was to fall into error. The extensions did not exist in a vacuum; they carried forward, by clear implication, the terms of the substantive contract that had preceded them, and the parties conducted themselves on that footing. 19. It follows that the trial court's conclusion, that the letters of extension had no legal or evidentiary basis merely because the underlying contract for every intervening period had not been separately produced, cannot be sustained. That conclusion did not have a firm legal or evidentiary foundation. The nature of the Appellant's space of operation, being project-driven work, must be taken into account. In an enterprise of that character, engagements are ordinarily tied to the availability and life-span of projects, and the practice of extending a subsisting contract by letter, rather than executing a fresh contract on each occasion, is neither unlawful nor, of itself, evidence of a design to defeat the law. 20. Herein lies the heart of the misdirection. There should be no conflation of two distinct legal phenomena. On the one hand, there are casual contracts which, by operation of the law under Section 37 of the Employment Act, convert into term employment where the qualifying conditions are met. On the other hand, there are fixed term contracts which are extended from time to time owing to the nature of the employer's business. The former is a creature of statute; the latter is a creature of contract. The learned trial Magistrate, with respect, treated the Claimant's successive fixed term extensions as though they operated to convert his engagement to permanent employment in the manner contemplated for casual employees under Section 37. That was to apply the wrong principle to the facts, and to misapprehend the true nature of the relationship on the record. 21. The distinction is not merely academic. It is well settled that a fixed term contract carries no legitimate expectation of renewal, and that upon its expiry by effluxion of time it comes to a natural end, giving rise to no claim for unfair termination. As the Court of Appeal observed in *Registered Trustees of the Presbyterian Church of East Africa & another v Ruth Gathoni [2017] eKLR*, fixed term contracts carry no rights, obligations or expectations beyond the expiry date, and a claim founded on the period after such expiry ought not to be entertained. The authorities relied upon by the Respondent, which concern the conversion of casual or continuous engagements and the doctrine of legitimate expectation, are distinguishable on the facts, and in any event the plea of legitimate expectation was neither pleaded nor established before the trial court. 22. On the evidence, the last fixed term contract under which the Claimant served was to run from 31st January 2023 to 31st May 2023, and the Claimant signed it. The letter dated 24th May 2023 clearly indicated that the last fixed term contract under which the Claimant was serving was to come to an end on 31st May 2023, and it was plain from that letter that the company was not to renew his employment any further. In my view, his employment ended when this last contract lapsed upon the expiry of time. There was no dismissal calling for a valid reason and fair procedure; there was, instead, the natural determination of a fixed-term engagement by effluxion of time. 23. I would add that the allegation of forgery, upon which the Claimant sought to impugn the last contract and the extension, was neither pleaded nor supported by any evidence whatsoever. He who alleges must prove. A bare assertion of forgery, made for the first time in cross-examination and unsupported by any oral or documentary proof, could not displace the documents duly produced and, in part, admittedly signed by the Claimant. 24. In the premises, the finding that the Claimant was a permanent employee cannot stand; and it follows, inexorably, that the further conclusion that the termination was both procedurally and substantively unfair was, with respect, erroneous. The learned trial Magistrate took into account irrelevant considerations, applied the wrong principle by importing the statutory conversion applicable to casual employees into a case of extended fixed term contracts, and thereby arrived at a conclusion that the evidence did not support. Grounds (i) to (vi) of the Memorandum of Appeal are, accordingly, merited. 25. Having found that the Claimant's employment came to an end by effluxion of time and not by an unfair termination, the substratum upon which the awards of compensation and pay in lieu of notice were founded falls away. The remedies granted by the trial court cannot therefore survive, and the Judgment of the trial court ought to be set aside in its entirety, including the remedies awarded. **G. DISPOSITION** 26. For the reasons foregoing, the appeal is merited and succeeds. I make the following orders: i) The appeal be and is hereby allowed. ii) The Judgment and Decree of the Honourable L. K. Sindani (Principal Magistrate) delivered on 6th March 2025 in Mombasa CMELRC Cause No. E406 of 2023 be and are hereby set aside in their entirety, including the remedies awarded. iii) In substitution therefor, the Claimant's suit in the lower court be and is hereby dismissed. iv) Each party shall bear its own costs of the appeal and of the proceedings in the trial court. 27. Orders accordingly. Dated, signed and delivered at Mombasa this 30th day of June 2026 **OCHARO KEBIRA** **JUDGE**