Rajab Barasa & 4 others v Kenya Meat Commission [2021] KEELRC 1439 (KLR)
The bottom line
#The Employment Court confirmed fixed term contracts in Kenya end automatically on their expiry date, but awarded some workers unpaid acting allowances and gratuity.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there was discrimination against the claimants by the respondent
- 2.Whether the non-renewal of the employment contracts for periods shorter than 3 years was unfair labour practice, unlawful and invalid
- 3.Whether acting positions held by the claimants for periods of over 6 months should be remunerated with back pay
- 4.Whether an order of reinstatement should issue and/or the claimants are entitled to the other remedies sought
Key legal issues
#Whether non-renewal of fixed term contracts for periods shorter than 3 years was an unfair labour practice
Fixed term contracts are lawful under section 10(3)(c) of the Employment Act; they lapse automatically on their end date and the court will not convert them into automatic renewals of three years.
The court held that the HR Policy's provision for a maximum renewable period of three years set a ceiling, not a guarantee. Every appointment and renewal was in writing for a stated term. Upon expiry the contract ends by operation of law without the need for notice or reasons, unless the contract itself requires justification. Issuing one-year renewals was therefore lawful and not an unfair labour practice.
Whether the claimants were discriminated against compared to retrenched employees
No discrimination established; comparators' circumstances differed and claimants were no longer in employment when retrenchments occurred.
Applying the Supreme Court's definition of discrimination, the court found the claimants failed to demonstrate unjustified differential treatment. The terms of the 130 comparable fixed term contracts were not addressed; by 30 November 2016 none of the claimants was in employment; the early retirement programme was voluntary and the claimants did not apply. Freedom of contract allowed the respondent to hire per its needs after the claimants declined to apply for advertised positions.
Whether acting positions held beyond six months should be remunerated with back pay and deemed confirmations
Acting allowances are payable under the HR policy for proven acting periods, but prolonged acting does not amount to automatic confirmation; time-barred claims fail under section 90 of the Employment Act.
The court found specific written terms governed each appointment and redeployment was not acting. Acting allowances were awarded only for proven, unexpired-limitation periods: the 4th claimant as company secretary (May 2013 to April 2016) and as HR and administration manager (August 2013 to February 2015), and the 5th claimant as livestock manager (27 January 2014 to 27 October 2015). Claims from 2011 were time barred.
The status of the 4th claimant given ambiguous renewal letters
The 4th claimant's contract letters were ambiguous and conflicting; he had no written fixed term from 1 May 2015, entitling him to notice pay under sections 35 and 36 of the Employment Act.
The letter of 4 November 2015 renewed the contract from an unstated '1st May' year to 4 February 2016, while the letter of 30 November 2015 gave notice ending employment on '31st April, 2016', a non-existent date. The court held the claimant remained in employment without written terms for the grey period and that a proper notice should have issued, entitling him to one month's gross salary as notice pay.
Whether reinstatement and terminal dues beyond contract expiry were available
Reinstatement refused; only admitted gratuity and tabulated dues payable; claims for post-expiry salary and retrenchment packages rejected.
Reinstatement requires a finding of unlawful and unfair termination plus exceptional circumstances. Each claimant's contract ended on its own terms with notice of non-renewal, save the 4th claimant's distinct situation. Gratuity was admitted by the respondent and ordered tabulated and paid at the shop floor; other claims such as unapproved taxi, mileage and medical expenses failed.
Legal principles established
#- Expiry of a fixed term contract is termination by operation of law, not a dismissal
- Each renewed fixed term contract forms a separate and distinct employment relationship in law
- Discrimination requires unjustified differential treatment that imposes a disadvantage or denial of equal terms
Court orders
#- 1.Gratuity due for each claimant shall be tabulated and paid at the shop floor
- 2.2nd claimant entitled to leave days due for the period of 16th December 2012 until employment terminated, if not already paid
- 3.4th claimant entitled to acting allowance for acting as company secretary for May 2013 to April 2016, to be tabulated at the shop floor
- 4.4th claimant entitled to acting allowance in the position of HR and administration manager for August 2013 to February 2015, to be tabulated at the shop floor
- 5.4th claimant entitled to notice pay equivalent to one month's gross salary of Ksh.340,000
- 6.5th claimant entitled to acting allowance as livestock manager for the period 27th January 2014 to 27th October 2015, if not already paid
- 7.Each party to bear 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 over employment and labour relations disputes (Employment Act, 2007 and the employment relationship between the parties)
Relief refused
#Declarations of unfair labour practice and invalidity of shorter renewals of contracts
Fixed term contracts were lawful and expired on their own terms; renewal was not automatic
Reinstatement
Contracts ended on their own terms; no unlawful termination found and no exceptional circumstances for specific performance
Retrenchment/severance packages
No redundancy was declared; claimants did not apply for the voluntary early retirement offer
Damages for constitutional violations
No constitutional violation established; allegations about management conduct belong before other agencies
Underpayment of salary/gratuity by the 3rd claimant based on predecessor's grade
Claimant's fixed term contract set his terms; no proof of comparator's contract
Salary claims for periods after contract expiry (including under interim orders)
Interim orders did not extend employment beyond the fixed contract term
Costs
Each party shall bear own 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.
1. Gratuity due for each claimant shall be tabulated and paid at the shop floor;
iii. Notice pay equivalent one (1) months gross salary KSH.340, 000.
3. Each party shall bear own costs.
the expiry of the fixed term contract of employment does not constitute termination of the contract by any of the parties. There is an automatic termination of the contract by operation of law and not a dismissal or unfair termination of employment
Each contract formed a separate and distinct relationship in law.
The ingredients of discrimination against a person as against the other to exist there must be a differentiation that is not justified and such unjustified differentiation must impose a disadvantage, unfair treatment or denial of equal terms which is unreasonable.
There is a grey period from 1st May 2015 to 30th November, 2015 when the claimant was issued with letter dated 30th November, 2015 advising him that his contract would not be renewed after 4th February, 2016.
Issues in the judgment
#Contradiction in the record of the 1st claimant's acting appointments: the claimant's chronology and the court's determination state different dates for the same appointment
Internal date inconsistency in the court's narration of the 1st claimant's appointment as acting chief finance officer
Termination notices issued to expire on a non-existent calendar date
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rajab Barasa & 4 others v Kenya Meat Commission [2021] KEELRC 1439 (KLR)", Case Analysis (2021). Cause No. 2262 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1439/eng@2021-06-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.