Kenya Building Construction Timber and Furniture Industries Employees Union v Ekotech Company Limited [2021] KEELRC 469 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the suit was filed out of time contrary to Section 90 of the Employment Act 2007
- 2.Whether the grievants' employment was unfairly terminated or ended by effluxion of time on expiry of fixed term contracts
- 3.Whether the grievants had a legitimate expectation of renewal of their fixed term contracts
- 4.Whether the grievants were discriminated against on account of being members of the union
Key legal issues
#Limitation of actions in employment claims
The suit filed in 2017 over termination effective 31 March 2014 was time barred; the court struck it out even at judgment stage
Section 90 of the Employment Act requires claims to be instituted within three years of the act complained of. The claim dated 3rd July 2017 exceeded the three-year period. The court held it could not overlook the bar even though neither counsel raised it, and that it had no discretion to extend time.
Termination of fixed term contracts
The grievants' employment ended by effluxion of time on expiry of fixed term contracts, not by unfair termination
The grievants signed fixed contracts expiring on 31st March 2014, witnessed by third parties, with no evidence of involuntary signing. The court relied on authority that expiry of a fixed term contract is automatic termination by operation of law and carries no expectations of renewal.
Legitimate expectation of contract renewal
No legitimate expectation arose despite earlier renewals over four years
Although the Claimant argued that prior renewals created a legitimate expectation, the court found that fixed term contracts carry no rights or expectations beyond expiry, following Teresa Carlo Omondi v Transparency International and other authorities on fixed term contracts.
Alleged discrimination on grounds of union membership
The claim of anti-union discrimination failed
The first grievant joined the union in 2011 and continued to be engaged until March 2014, which the court found inconsistent with discrimination on union membership grounds.
Legal principles established
#- Actions arising out of the Employment Act or contract of service must be commenced within three years of the act complained of
- A court has no jurisdiction to extend time in causes of action based on breach of contract of service or actions arising out of the Employment Act
- Fixed term contracts carry no rights, obligations or expectations beyond the date of expiry
Court orders
#- 1.The suit is struck out for the reason that it was filed out of time
- 2.No order as to costs, each party bearing their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act 2007 (claim arising out of contract of service)
Relief refused
#Declaration that the grievants' employment was unfairly terminated
The suit was time barred under Section 90 of the Employment Act; in any event the fixed term contracts expired by effluxion of time
Compensation and other reliefs claimed on behalf of the grievants
Fixed term contracts carry no rights, obligations or expectations beyond the date of expiry
Costs
No order as to costs; both parties did not raise the limitation issue and therefore none deserves costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The suit is hereby struck out for the reason that it was filed out of time.
Both parties did not raise that fundamental issue and therefore none deserves costs. No order as to costs.
The court is convinced that the four grievants employment terminated not through unlawful termination but by effluxion of time.
The authorities are unanimous that fixed term contracts carry no rights, obligations or expectation beyond the date of expiry of contract.
Issues in the judgment
#The Respondent's pleading refers to the Respondents (plural) as having been engaged by the Respondent, an apparent drafting error
The name of the cited authority appears inconsistently as 'TERESA CARLE OMONDI' and 'TERESA CARLO OMONDI' in the same judgment
House allowance figures for the grievants appear inconsistent (e.g. Kshs.1,1440/= for Eric Mugo Nyaga and differing figures of 1663 and 1163 for Ogeto and Nandi)
The claimant union and case number are never named in the judgment text
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Building Construction Timber and Furniture Industries Employees Union v Ekotech Company Limited [2021] KEELRC 469 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/469/eng@2021-11-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.