Kenya Institute of Curriculum Development v Nyamudhe (Civil Appeal 145 of 2019) [2023] KECA 1499 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that fixed-term contracts expire when they end — employers need not renew them or give notice unless the contract says so.
What this practically means
#Executive summary
#Key legal issues
#Interpretation of the Government circular of 20 March 2009
The circular did not automatically renew the respondent's contract; contracts expiring before attainment of 60 years were to be renewed in accordance with their provisions.
The circular addressed three classes of workers. The respondent fell in the second class - contracts expiring before 60 - which were to be renewed only in accordance with the contract's provisions. The last contract had no renewal clause, unlike earlier contracts. Holding that the circular automatically renewed the contract would make nonsense of the language used in the circular.
Whether legitimate expectation of renewal arose from the circular, contract, past renewals or the loan
No legitimate expectation arose from any of these sources; the loan was obtained through manipulated application forms constituting fraud.
Neither the circular nor the contract created expectation of renewal. Previous renewals rested on contracts that expressly provided for renewal, unlike the last one. The loan was obtained by altering application forms from Kshs 350,000 to Kshs 850,000, evidence the ELRC ignored; a party cannot benefit from his own mischief.
Whether three months' notice of non-renewal was required
No notice was required; the ELRC conflated unlawful termination with expiry by effluxion of time.
The contract contained no notice-of-non-renewal clause. Notice or payment in lieu was required only for termination before expiry under the contract's termination provisions. The contract ran its full term and simply expired, so the award for unlawful termination was a fundamental misdirection.
Gratuity
The award of gratuity was upheld as sufficiently pleaded and proved.
The respondent had prayed for terminal dues and benefits, which include gratuity. The appellant was not taken by surprise and suffered no prejudice, so the ELRC's award of gratuity stands.
Legal principles established
#- Contracts expiring before attainment of 60 years under the 2009 circular were to be renewed only in accordance with the provisions of the contracts, not automatically.
- An automatically renewable fixed-term contract is a contradiction in terms; whether a contract with a renewal clause will be extended is at the discretion of the employer and cannot create a legal right under legitimate expectation.
- A fixed-term contract that runs its full term expires by effluxion of time; notice or payment in lieu is required only for termination before expiry where the contract so provides.
- Legitimate expectation arises only from promise, representation or past practice by a public body; a practice founded on contracts with different provisions cannot create expectation as to a contract with different terms.
Court orders
#- 1.Appeal allowed
- 2.Judgment of the ELRC set aside
- 3.Respondent entitled to his gratuity under the last fixed-term contract upon clearing with the appellant
- 4.Appellant to have costs of the claim in the ELRC and costs of this appeal
- On appeal from
- Employment and Labour Relations Court
- Jurisdiction invoked
- First appellate jurisdiction over the Employment and Labour Relations Court (reference to duty of a first appellate court); specific statutory provision not stated in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Institute of Curriculum Development v Nyamudhe (Civil Appeal 145 of 2019) [2023] KECA 1499 (KLR)", Case Analysis (2023). Court of Appeal Appeal (as cited in judgment; memorandum of appeal referenced). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1499/eng@2023-12-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.