Ombewa v Ezeetec Limited (Appeal E072 of 2022) [2024] KEELRC 776 (KLR)
The bottom line
#Kenya's Employment Court confirmed that when a fixed-term contract ends with the project it was tied to, that is not redundancy and no severance pay is owed.
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 Trial Court erred by failing to consider the evidence, pleadings, submissions and documents presented by the Appellant
- 2.Whether the Respondent’s non-participation at the hearing made the Appellant’s case watertight and unchallenged
- 3.Whether the Trial Court should have ordered release of a certificate of service
- 4.Whether the Respondent was obliged to apply Section 40 of the Employment Act on redundancy
- 5.Whether the Appellant was issued notice of termination
Key legal issues
#Whether termination at the end of a project-tied fixed-term contract constitutes redundancy under Section 40 of the Employment Act
It does not; the contract lapsed by agreement at the end of the project and termination was not at the employer’s initiative
The contract under clause 2 was a fixed-term contract tied to the construction of a 220 kv facility at Ring Road, Nairobi. The parties agreed from inception that the contract would end with the project. Redundancy is termination at the employer’s initiative and involuntary; here termination was voluntary, occurring at the end of the agreed limited term. The Trial Court therefore rightly applied Sections 43 and 45 rather than Section 40, and the Appellant never pleaded redundancy in his Statement of Claim.
Effect of the respondent’s non-participation at trial
Non-participation does not establish the claim; the claimant bears the burden of proof
The appellant argued that the unchallenged claim was watertight. The Court held that the claimant must establish the claim to the accepted standard under Section 47(5) of the Employment Act regardless of the respondent’s absence. The Trial Court was entitled to evaluate the pleadings, contract and documents before it, and its conclusion that termination was based on valid reasons could not be disturbed.
Whether the appellant was denied notice
No; he was offered two weeks’ notice in accordance with a memorandum of understanding with the respondent
The Court found there was evidence the appellant was offered two weeks’ notice under a memorandum of understanding concluded between him and the respondent. Further, given the project-tied fixed-term nature of the contract, notice issues framed under ordinary termination principles did not assist him, since the contract lapsed with the winding up of the project.
Legal principles established
#- Where a fixed-term contract of employment is pegged to the life of a project, it comes to an end with the end of the project; such termination is not redundancy under Section 40 of the Employment Act and requires no notice, consultation with the Labour Office or severance pay unless the contract so provides.
- A respondent’s non-participation at a hearing does not make a claimant’s case unchallengeable; the claimant must still prove the claim to the applicable standard under Section 47(5) of the Employment Act.
Court orders
#- 1.The Appeal is declined
- 2.No order on the costs of the Appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate’s Court
- Not stated in judgment
- Jurisdiction invoked
- First appellate jurisdiction over the Chief Magistrate’s Court (Employment and Labour Relations Court Act); not expressly cited in the judgment
Relief refused
#Certificate of service
The Appellant did not pray for such an order at the Trial
Service gratuity and service pay
The prayers were duplicated and had no support in the contract or the law
Severance/redundancy benefits under Section 40
Redundancy was not pleaded and the fixed-term contract lapsed with the end of the project
House allowance
The contract already included house allowance under clause 5.3
Refund of NSSF contributions
NSSF records were not availed at the Trial
Costs
No order on the costs of the Appeal.
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.
Where a contract of employment is pegged to the life of a project carried out by the Employer, it comes to end with the end of the project.
Redundancy involves termination at the initiative of the Employer. It is termination by involuntary means.
Failure by the Respondent to participate in the hearing, did not in any way, make the Appellant’s case watertight and unchallengeable.
a. The Appeal is declined. b. No order on the costs of the Appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ombewa v Ezeetec Limited (Appeal E072 of 2022) [2024] KEELRC 776 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/776/eng@2024-03-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.