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ELRCDismissedNot stated in the judgment extract

Osebe v Nyangena Hospital Limited (Appeal E033 of 2024) [2025] KEELRC 1272 (KLR)

Employment and Labour Relations Court
5 May 2025
6,532 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that a signed fixed-term employment contract simply ends when it expires, and employees must raise objections like coercion early and clearly.

What this practically means

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Executive summary

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This was a first appeal to the Employment and Labour Relations Court at Kisumu against the decision of a learned trial Magistrate who had dismissed the appellant's claim for unlawful termination of employment and terminal dues of Kshs.606,437. The appellant, employed by the respondent and moved onto a one-year fixed term contract effective 1st November 2020 which lapsed on 31st October 2021, faulted the trial court for ignoring alleged concurrent oral and written contracts, coerced signature of the fixed term contract, unilateral alteration of terms amounting to unfair labour practice, and failure to consider her submissions. Gakeri J, re-evaluating the evidence as on a retrial, held that the duress allegation was an afterthought never pleaded nor raised in the witness statement, surfacing only in cross-examination, and that no scintilla of evidence supported it; a signature prima facie binds the signatory absent proved vitiating elements. The alleged oral contract was unpleaded and in any event merged with and was discharged by the written contract. The transition to fixed term employment followed consultation and sensitization, and the appellant's signing and continued service amounted to express and implied acceptance of the new terms. The employment relationship ended by effluxion of time of the fixed term contract, requiring no notice or justification, and none of the claimed reliefs (salary, service pay, notice pay, compensation, public holidays, rest days, overtime and leave) was proved, service pay being barred by NSSF membership under section 35(6)(d) of the Employment Act. The trial Magistrate was found not to have erred on submissions. The appeal was dismissed, the certificate of service as directed by the trial court was upheld, and each party was ordered to bear their own 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 appellant was coerced or subjected to duress when signing the fixed term contract of employment dated 1st November 2020
  2. 2.Whether there were two concurrent contracts of employment (oral and written) between the parties
  3. 3.Whether the respondent unilaterally altered the appellant's terms of employment from permanent to fixed term, amounting to an unfair labour practice
  4. 4.Whether the termination of the appellant's employment was unfair or unlawful
  5. 5.Whether the trial Magistrate erred by failing to consider the appellant's submissions
  6. 6.Whether the appellant was entitled to the reliefs claimed (salary, service pay, notice pay, compensation, public holidays, rest days, overtime and leave)

Key legal issues

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01

Whether the appellant proved duress or coercion in signing the fixed term contract

Holding

The appellant failed to prove duress; the allegation was an afterthought raised for the first time in cross-examination and never pleaded or raised in the witness statement

Reasoning

The statement of claim and witness statement made no mention of duress, coercion or threats. The allegation surfaced only during cross-examination, lacking particulars as to who exerted the coercion, when, where and how. The appellant continued working under the contract, never protested, and thus the doctrine of estoppel by conduct barred the claim. The burden of proof under Sections 107, 108 and 109 of the Evidence Act was not discharged.

p. 5
02

Whether an oral contract subsisted alongside the written contract

Holding

No; the issue was unpleaded, and in any event the oral contract merged with and was discharged by the written contract upon signing

Reasoning

The court agreed with the respondent that parties are bound by their pleadings and an unpleaded issue cannot be entertained. Even on the merits, upon the appellant signing the new written contract, the rights and obligations under the oral contract were subsumed in the new agreement by way of merger, a legitimate bilateral mode of terminating a contract by agreement.

p. 8
03

Whether the transition from permanent to fixed term employment was a unilateral variation amounting to unfair labour practice

Holding

No unilateral variation occurred; the respondent consulted and sensitized the employees, and the appellant's signing and continued service amounted to express and implied acceptance

Reasoning

The appellant attended a sensitization meeting on 13th October 2020, signed the attendance sheet, and later signed the contract on 26th November 2020. Under Section 10(5) of the Employment Act revision is to be done in consultation with the employee. Consent to variation need not be express and may be inferred from conduct. Fixed term contracts are a legitimate form of employment.

p. 9
04

Whether the termination was unfair or unlawful

Holding

The employment ended by effluxion of time of a one-year fixed term contract; no notice or justification was required

Reasoning

Having found the appellant voluntarily bound by the one-year fixed term contract effective 1st November 2020, which lapsed on 31st October 2021, the employment relationship terminated automatically upon expiry. Fixed term contracts carry no expectancy of renewal and the employer need not justify termination beyond the lapse of the fixed period.

p. 11
05

Whether the trial Magistrate failed to consider the appellant's submissions

Holding

No error; the trial court expressly stated it considered the pleadings and written submissions and addressed issues similar to those identified by the appellant

Reasoning

The trial court's judgment stated it had considered the pleadings and written submissions, and its isolated issues mirrored those in the appellant's submissions. Submissions do not constitute evidence and a court may decide on evidence alone; the complaint was therefore vexatious.

p. 11

Legal principles established

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  • A first appeal is by way of retrial; the court must re-evaluate the evidence and draw its own conclusions
  • A signature on a contract prima facie denotes acceptance and binds the signatory unless procurement by misrepresentation, mistake, duress or undue influence is proved
  • A fixed term contract ends by effluxion of time without any obligation on the employer to justify termination or give reasons beyond the lapse of the fixed period
  • An employee's consent to variation of contractual terms may be implied from conduct, including remaining in employment after the revised terms are operationalized
  • A party is bound by its pleadings and courts cannot pronounce on unpleaded issues
  • Submissions do not constitute evidence and cannot take the place of proof
  • A claim for unpaid salary is a species of special damages that must be specifically pleaded and proved
  • An employee registered with NSSF is not entitled to service pay

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The appellant is entitled to a certificate of service as directed by the trial court
  3. 3.Parties shall bear their own costs of the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Magistrates' Court (trial court, learned trial Magistrate)
Not stated in the judgment extract
Jurisdiction invoked
First appeal to the Employment and Labour Relations Court against the judgment of the trial Magistrate in a claim for unfair termination of employment (Employment Act; no specific provision stated in the extract)

Relief refused

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Compensation of Kshs.606,437 (including salary for 8 years, service pay, notice pay, compensation, public holidays, rest days, overtime and leave)

The contract lapsed by effluxion of time; no unfair or unlawful termination; the claims lacked particulars and supporting evidence

p. 13

Setting aside and varying the judgment and decree of the trial court

The appeal lacked merit

p. 13

Costs

Parties shall bear own costs of this appeal.

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.

In conclusion, this court is satisfied that the appellant’s appeal lacks merit and it is accordingly dismissed.
p. 13Disposition - dismissal of appeal
Parties shall bear own costs of this appeal.
p. 13Costs order
However, the appellant is entitled to a certificate of service by dint of Section 51 of the Employment Act as directed by the trial court.
p. 13Certificate of service
There is no scintilla of evidence to demonstrate or suggest that the contract of employment dated 1st November, 2020, signed by the appellant on 26th November, 2020 was vitiated by duress.
p. 5Failure to prove duress
Simply stated, the oral contract merged with the written contract and it was thus discharged by the appellant’s action of signing the new contract.
p. 8Merger of oral into written contract
the employment relationship between the appellant and the respondent ended on account of effuxion of time.
p. 10Termination by effluxion of time
it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings.”
p. 8Parties bound by pleadings

Issues in the judgment

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material

The judgment repeatedly shifts between feminine and masculine pronouns for the same appellant (e.g. "she" and "his/h he"), and states inconsistent employment commencement dates

minor

The sensitization meeting date is given inconsistently as 13th October 2023 and 13th October 2020 in different paragraphs

minor

The judgment states the appellant pleaded employment from 2002 but elsewhere the claim alleges service of 7 years from a rose salary from 2009 to 2020; the commencement year is inconsistent within the judgment

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, "Osebe v Nyangena Hospital Limited (Appeal E033 of 2024) [2025] KEELRC 1272 (KLR)", Case Analysis (2025). Not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1272/eng@2025-05-05

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.