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ELRCPartially Allowed

Moraa v Nyangena Hospital Ltd (Appeal E031 of 2024) [2025] KEELRC 1281 (KLR)

Employment and Labour Relations Court of Kenya
5 May 2025
6,833 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed that a signed fixed term contract ends on its own expiry, but the employee won leave pay owed under the Employment Act.

What this practically means

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Executive summary

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This is a first appeal from a magistrates' court decision dismissing an employment claim. The appellant, a receptionist, alleged that her employment was unfairly terminated and that she was coerced into signing a one-year fixed term contract on 1st November 2020, which she contended operated alongside a prior oral contract dating back to 2006. The trial magistrate found the fixed term contract lapsed without unfair termination, directed issuance of a certificate of service, and ordered each party to bear own costs. On appeal, Gakeri J re-evaluated the evidence. The court held that the duress allegation, first raised in cross-examination without particulars and absent from the pleadings and witness statement, was an afterthought; a signature binds unless fraud, misrepresentation, mistake, duress or undue influence is proved, and the appellant's acquiescence attracted estoppel. The concurrent-contracts issue was unpleaded; in any event the oral contract merged with the written contract. No unilateral variation of terms was established, as the respondent consulted and sensitized the appellant before she signed, and consent may be implied from conduct. The fixed term contract lapsed by effluxion of time on 31st October 2021, so no unfair or unlawful termination occurred. Most heads of relief (salary, service pay, notice pay, compensation, public holidays, rest days, overtime) failed for want of pleading or proof. However, leave records showed the appellant neither took nor was paid leave for 2019 and received only 60 instead of 90 days' maternity leave in 2020, so the trial court's finding on leave pay was set aside and Kshs.22,100.00 awarded for untaken leave days. The appeal was partially successful; all other trial court findings were upheld and each party was ordered to bear its own costs of the appeal.

Questions the Court framed

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

  1. 1.Role of the first appellate court in re-evaluating evidence
  2. 2.Whether the appellant proved duress or coercion in the signing of the fixed term contract
  3. 3.Whether an oral and a written contract of employment subsisted concurrently
  4. 4.Whether the respondent unilaterally altered the terms of the contract of employment
  5. 5.Whether the termination of the appellant's employment was unfair or unlawful
  6. 6.Whether the trial magistrate failed to consider the appellant's submissions
  7. 7.Which, if any, of the reliefs sought were merited

Key legal issues

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01

Duress in the execution of the fixed term contract

Holding

The appellant failed to plead or prove duress; the allegation raised during cross-examination was an afterthought

Reasoning

The statement of claim and witness statement were silent on coercion; the allegation surfaced only in cross-examination without particulars of who, where, when and how. The appellant signed the contract, served its full duration, never signed under protest or complained, signifying acquiescence and attracting estoppel by conduct. The threat to withhold salary does not amount to duress in law.

p. 5
02

Concurrent oral and written contracts

Holding

The issue was unpleaded; in any event the oral contract merged with the written contract

Reasoning

Issues emanate from pleadings and courts cannot frame issues not arising from them. On the merits, the oral contract merged with the written contract upon the appellant signing the new agreement, discharging it by mutual agreement. Only one contract of employment existed from 1st November 2020.

p. 8
03

Unilateral alteration of contract terms

Holding

No unilateral variation was established; the appellant was consulted, sensitized, signed the contract and remained in employment

Reasoning

The respondent invited the appellant to a sensitization meeting, which she attended and signed the attendance sheet, and the contract was explained at the Human Resource office. Consent to variation may be express or implied from conduct, including signing the agreement containing altered terms and remaining in employment.

p. 9
04

Whether termination was unfair or unlawful

Holding

The employment relationship ended by effluxion of time of the one-year fixed term contract; no unfair termination occurred

Reasoning

Fixed term contracts carry no expectancy of renewal or obligations beyond expiry; termination is self-executing on lapse of the period unless the contract provides otherwise. The contract effective 1st November 2020 lapsed on 31st October 2021, ending the employment relationship.

p. 11
05

Failure to consider submissions

Holding

The trial magistrate addressed the issues in the submissions; no error established

Reasoning

The trial court expressly stated it considered the pleadings and written submissions, and the issues it isolated mirrored those in the appellant's submissions. Submissions cannot take the place of evidence in any event.

p. 11
06

Reliefs - leave pay

Holding

The trial court's finding on leave pay was set aside; the appellant was owed one month's salary as maternity leave top-up for 2020 and leave pay for 2019

Reasoning

Documentary leave forms showed payment for untaken leave from 2015-2018 and approved leave in 2020 and 2021, but 2019 leave was neither taken nor paid, and 2020 maternity leave was 60 days instead of 90 days as required by section 29 of the Employment Act.

p. 13

Legal principles established

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  • A fixed term contract terminates automatically by effluxion of time and carries no obligation on the employer to justify termination or give notice beyond the lapse of the period
  • A signature on a contract prima facie denotes acceptance and binds the signatory absent fraud, misrepresentation, mistake, duress or undue influence
  • A party alleging duress or coercion bears the burden of proving it, and the party must have taken steps to avoid the contract
  • Parties are bound by their pleadings and a court cannot pronounce itself on unpleaded issues
  • A prior oral contract of employment merges with and is discharged by a subsequent written contract signed by the employee
  • An employee's consent to variation of contract terms may be implied from conduct, including signing the agreement or continuing in employment
  • Submissions do not constitute evidence

Court orders

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  1. 1.The appellant is awarded Kshs.22,100.00 for untaken leave days
  2. 2.Other findings and holdings by the trial court are upheld
  3. 3.Parties shall bear their own costs of this 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 (ELRC subordinate court)
Jurisdiction invoked
First appeal from the trial magistrate's court in an employment claim (Employment and Labour Relations Court appellate jurisdiction)

Relief refused

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Setting aside judgment and declaration that termination was unfair with compensation of Kshs.606,437.00

The fixed term contract lapsed by effluxion of time; no unfair termination was proved

p. 11

Unpaid salary for 14 years

Special damages not pleaded and proved; claim grounded on a misconception

p. 12

Service pay

Appellant was an NSSF member and ineligible under section 35(6)(d) of the Employment Act

p. 12

Pay in lieu of notice

No unlawful or unfair dismissal; fixed term contract self-executing

p. 12

Compensation for unfair termination (Kshs.133,680.00)

Same findings as pay in lieu of notice apply

p. 12

Public holidays pay

Lacked particulars and supportive evidence

p. 12

Rest days claim

Blanket claim without evidence; appellant worked six days per week with one rest day

p. 13

Overtime claim

Unsubstantiated; witness statement silent on extra hours worked

p. 13

Two certificates of service

Not addressed as a distinct relief in the disposition; trial court's order on certificate of service upheld

Costs

Parties shall bear their 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.

Accordingly, the appeal is partially successful to the extent that: a. The appellant is awarded Kshs.22,100.00 for untaken leave days.
p. 13Disposition
c. Parties shall bear their own costs of this appeal.
p. 14Costs
For the avoidance of doubt, other findings and holding by the trial court are upheld.
p. 14Upholding trial court findings
there is no obligation on the part of the employer to give a notice of termination as termination is selfexecuting by efiuxion of time, unless the contract itself creates the obligation
p. 10Fixed term contracts
At common law signature prima facie means acceptance.
p. 6Effect of signature on contracts
In the court's view, the appellant's contention that she was force to sign the contract of employment was an afterthought
p. 6Duress
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 contracts
It is a settled legal proposition that no party should be permitted to travel beyond its pleadings
p. 8Pleadings
Submissions, we reiterate do not constitute evidence at all.
p. 11Role of submissions
alike to the hallowed legal maxim that it is not the business of Courts to rewrite contracts between parties as the said parties were bound by the terms of their contracts, unless coercion, fraud or undue inference are pleaded and proved
p. 7Sanctity of contracts

Issues in the judgment

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minor

Internal inconsistency in dates: the contract is variously dated and described, e.g. 'the contract of employment dated 1st November, 2020' but later 'there was only one contract of employment between the appellant and the respondent dated 1st November, 2021 efiective, 2008'

minor

The judgment repeatedly refers to the appellant with mixed gender pronouns ('her' and 'his') and states the written statement was recorded '112 years after' the fixed term contract commenced, which is evidently a typographical error

minor

Memorandum of appeal grounds state the respondent admitted employment 'since 2006' while the judgment records the respondent's admission of employment in 2008

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, "Moraa v Nyangena Hospital Ltd (Appeal E031 of 2024) [2025] KEELRC 1281 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1281/eng@2025-05-05

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