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ELRCDismissedPetition No 15 of 2017· [2018] KEELRC 1727 (KLR)

Lynette S.O Injette v Board of Directors Habitat for Humanity Kenya & another [2018] KEELRC 1727 (KLR)

Employment and Labour Relations Court
22 June 2018
BOByram Ongaya
2,848 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed that an employer may decline to renew a fixed-term contract, and any authorised person can deliver that news.

What this practically means

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Executive summary

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The petitioner, formerly National Director of Habitat for Humanity Kenya on a two-year fixed term contract effective 2 March 2015, petitioned the Court under Articles 10, 19, 20, 21, 27, 165(3)(b) and 258 of the Constitution after receiving notice dated 22 February 2017 that her contract would terminate by effluxion of time on 2 March 2017 and would not be renewed. She sought declarations that the notice was illegal, null and void, that the Area Vice President Torre Nelson lacked mandate to issue it, and an order of prohibition against termination. The Court framed four issues. First, it held that although an NGO Board search showed David Iluve Kithakye as chairman at the material time, board minutes showed Kithakye had resigned on 21 February 2017 and Torre Nelson appointed chairman; the notification was a communication of a decision already made, and where parties have not agreed on who communicates contractual matters, any person authorised by the employer may do so. Secondly, the non-renewal complied with the contractual renewal conditions (performance and the Strategic Plan and Human Resource policy), so the termination was not unconstitutional and any legitimate expectation of renewal was misconceived. Thirdly, the authorities relied on by the petitioner were distinguishable, as no contractual notice on refusal of renewal was breached; the contract simply lapsed by effluxion of time. Fourthly, the petition was not fatally defective, the Court endorsing a universal procedural approach under the 2010 Constitution. The petition was dismissed with each party bearing its own costs.

Key legal issues

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01

Authority of Torre Nelson to issue the non-renewal notification

Holding

Torre Nelson had authority to issue the notification despite the NGO Board search showing Kithakye as chairman.

Reasoning

The NGO Board search was prima facie evidence that Torre Nelson was not chairman, but board minutes showed Kithakye had resigned on 21.02.2017 and Torre Nelson was appointed chairman effective that date; the changes simply had not been registered. The board later affirmed and ratified the decision not to renew. The notification was a communication of an already-made decision, and the respondents did not deny Torre Nelson's authority to communicate it.

p. 2
02

Whether the termination was unconstitutional or violated legitimate expectation under Articles 41 and 47

Holding

The termination was not unconstitutional; the contract lapsed by effluxion of time and was not renewed per the contract's renewal terms.

Reasoning

The contract was renewable for a further two years subject to performance and the Strategic Plan and Human Resource policy; either condition sufficed. The stated reason was a review of the Habitat Kenya strategy and changes to Strategic and Human Resources Plans, which was in strict compliance with the contract. The petitioner did not plead against the veracity of that reason, and board minutes showed genuine leadership changes. Legitimate expectation of renewal was therefore misconceived.

p. 3
03

Distinguishment from fixed-term non-renewal precedents

Holding

The cited authorities were distinguishable because they involved breach of the contractual notice clause on refusal of renewal, which was absent here.

Reasoning

In Ruth Gathoni Ngotho-Kariuki and Teresa Carlo Omondi the employers failed to serve the contractual three months' notice that renewal would be declined, rendering termination unfair. Here there was no breach of any such clause; the two-year contract simply expired by effluxion of time and the employer elected not to renew in accordance with the renewal conditions in the contract.

p. 3
04

Whether the petition was fatally defective

Holding

The petition was not fatally defective; contraventions were pleaded and could only be determined at full hearing, and the Constitution permits a universal approach to procedure.

Reasoning

On the face of the petition the petitioner pleaded alleged contravention of the cited rights, which could only be tested at full hearing. Following Muchai Muhura and Biama, the Constitution collapsed the divide between judicial review and ordinary actions, opening access to justice and all remedies in the same proceedings; litigants will not be faulted for the procedural option adopted while universal procedure has not evolved.

p. 3

Legal principles established

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  • Where parties have not agreed on the person to communicate matters arising from a contract of employment, any person authorised by the employer may do so despite rank or designation.
  • A fixed term contract that lapses by effluxion of time and is not renewed in accordance with contractual renewal terms is not unfairly or unconstitutionally terminated.
  • Under the 2010 Constitution, litigants will not be faulted for the procedural option they adopt among the myriad procedural options spanning ordinary actions and constitutional petitions.

Court orders

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  1. 1.Judgment entered for the respondents against the claimant for dismissal of the petition
  2. 2.Each party to bear own costs of the proceedings

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10; 19(2); 20(1),(2),(3)&(4); 21(1); 27(1)&(2); 41; 47(1)&(2); 159; 165(3)(b); 258
  • Non-Governmental Organisations Co-ordination ActCap.134 Laws of Kenya
  • Civil Procedure ActCap.21, sections 1A, 1B and 3A
  • Appellate Jurisdiction ActCap.9, sections 3A and 3B

Cases cited (7)

  • Ruth Gathoni Ngotho-Kariuki v Presbyterian Church of East Africa and Presbyterian Foundation
    [2012] eKLR
  • Teresa Carlo Omondi v Transparency International - Kenya
    [2017] eKLR
  • Geoffrey Ndungu Theuri v Law Society of Kenya
    [1988] eKLR
  • Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others
    [2013] eKLR
  • Peter Muchai Muhura v Teachers Service Commission
    [2015] eKLR
  • Professor Elijah Biama v University of Eldoret and 2 Others
    [2014] eKLR
  • Harrikson v Attorney General of Trinidad and Tobacco
    (1980) AC 265
Jurisdiction invoked
Articles 165(3)(b) and 258 of the Constitution of Kenya, 2010

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, "Lynette S.O Injette v Board of Directors Habitat for Humanity Kenya & another [2018] KEELRC 1727 (KLR)", Case Analysis (2018). Petition No 15 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1727/eng@2018-06-22

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