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ELRCStruck OutNot stated in judgment

Kenya Building Construction Timber and Furniture Industries Employees Union v Ekotech Company Limited [2021] KEELRC 469 (KLR)

Employment and Labour Relations Court
18 November 2021
1,726 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Claimant, a trade union, sued on behalf of four grievants (Mac Donald Ogeto, Leonard Nandi, Njeru John Kuria and Eric Mugo Nyaga) alleging that their services were terminated on 31st March 2014 because of their union membership, after the Respondent's Director ordered them to stop working and barred them from reporting to work. The Claimant sought a declaration of unfair termination and associated reliefs, arguing the grievants had a legitimate expectation of renewal since their contracts had been renewed over the preceding four years. The Respondent contended that the grievants were engaged on fixed term contracts which expired on 31st March 2014 and that their dues were paid at exit, relying on authority that fixed term contracts carry no expectations beyond expiry. The court, Mwaure J, found the claim dated 3rd July 2017 and filed in August 2017 was time barred under Section 90 of the Employment Act, which requires actions arising out of the Act or contract of service to be commenced within three years. Following Maria Machocho v Total Kenya Ltd, the court held it lacked jurisdiction or discretion to extend time, and struck out the suit even at judgment stage, noting counsel had ignored the issue. In the alternative, the court found the grievants' contracts ended by effluxion of time on 31st March 2014, not by unfair termination, and that no anti-union discrimination was proved. The suit was struck out with no order as to costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the suit was filed out of time contrary to Section 90 of the Employment Act 2007
  2. 2.Whether the grievants' employment was unfairly terminated or ended by effluxion of time on expiry of fixed term contracts
  3. 3.Whether the grievants had a legitimate expectation of renewal of their fixed term contracts
  4. 4.Whether the grievants were discriminated against on account of being members of the union

Key legal issues

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01

Limitation of actions in employment claims

Holding

The suit filed in 2017 over termination effective 31 March 2014 was time barred; the court struck it out even at judgment stage

Reasoning

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.

p. 3
02

Termination of fixed term contracts

Holding

The grievants' employment ended by effluxion of time on expiry of fixed term contracts, not by unfair termination

Reasoning

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.

p. 3
03

Legitimate expectation of contract renewal

Holding

No legitimate expectation arose despite earlier renewals over four years

Reasoning

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.

04

Alleged discrimination on grounds of union membership

Holding

The claim of anti-union discrimination failed

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The suit is struck out for the reason that it was filed out of time
  2. 2.No order as to costs, each party bearing their own costs

The bench

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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

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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

p. 3

Compensation and other reliefs claimed on behalf of the grievants

Fixed term contracts carry no rights, obligations or expectations beyond the date of expiry

p. 3

Costs

No order as to costs; both parties did not raise the limitation issue and therefore none deserves costs

Quotable passages

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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.
p. 3final orders - striking out for limitation
Both parties did not raise that fundamental issue and therefore none deserves costs. No order as to costs.
p. 3costs order
The court is convinced that the four grievants employment terminated not through unlawful termination but by effluxion of time.
p. 3effluxion of time on expiry of fixed term contract
The authorities are unanimous that fixed term contracts carry no rights, obligations or expectation beyond the date of expiry of contract.
p. 3fixed term contracts - no expectation beyond expiry

Issues in the judgment

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minor

The Respondent's pleading refers to the Respondents (plural) as having been engaged by the Respondent, an apparent drafting error

minor

The name of the cited authority appears inconsistently as 'TERESA CARLE OMONDI' and 'TERESA CARLO OMONDI' in the same judgment

minor

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)

material

The claimant union and case number are never named in the judgment text

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.