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ELRCDismissedCause No 1405 of 2018· [2021] KEELRC 716 (KLR)

Tom Ukiru Kamaliki v Centres for International Programs Kenya [2021] KEELRC 716 (KLR)

Employment and Labour Relations Court
28 September 2021
NMNzioki Wa Makau
4,554 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Claimant, formerly Human Resource Director of the Respondent (the Kenya Country program of Global ICAP at Columbia University), sued claiming his employment was unlawfully terminated and/or his position unlawfully declared redundant. He was employed on 18th April 2011 on fixed term contracts, promoted to HR Director on 1st October 2015, and received a salary increment on 17th July 2018. He argued that custom, practice, continuous renewals over 7.5 years, and the inclusion of his bio-data and remuneration in donor-funded projects (notably the five-year JOOTRH project and KENPHIA) gave rise to a legitimate expectation of renewal, and that the non-renewal was discriminatory and without due process. He sought notice pay, severance, unpaid leave, compensation and exemplary damages. The Respondent, through its Country Director Dr. Mark Hawken, maintained the contract was a fixed term contract that expired by effluxion of time on 30th September 2018 following reduced donor funding. The court framed the issue as whether the termination on 30th September 2018 was unlawful, including whether there was a legitimate expectation of renewal or unfair redundancy. Relying on Bernard Wanjohi Muriuki v Kirinyaga Water and Sanitation Company Limited as approved by the Court of Appeal in Amatsi Water Services, the court held that fixed term contracts end by effluxion of time, that courts cannot rewrite contracts freely entered into, and that no legitimate expectation of renewal was established. Noting the Claimant had been notified of non-renewal and paid his terminal dues, the court found nothing recoverable and dismissed the entire suit, with each party bearing their own costs.

Key legal issues

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01

Whether the Claimant had a legitimate expectation of renewal of his fixed term contract

Holding

No legitimate expectation was established; the contract expired on its own terms on 30th September 2018

Reasoning

The Claimant's own exhibited contract showed he was on a fixed term contract. The court adopted the principle that a fixed term contract terminates on the sunset date unless extended in terms stated in the contract, and that a court cannot rewrite the contract. Although the Claimant relied on the Teresa Carlo Omondi preconditions, the court found funding for the Respondent's projects fluctuated and staff were hired on fixed term contracts renewed depending on availability of funding. Nothing in the evidence gave the Claimant a legally protected expectation of renewal.

p. 4
02

Whether the termination or declaration of redundancy was unlawful and unfair

Holding

There was no termination at all; the contract simply expired by effluxion of time, so no unfair termination or redundancy arises

Reasoning

The evidence showed that on 1st August 2018 the SMT was informed of reduced funding; the Claimant was notified on 22nd August 2018 that his contract would not be renewed; a notice of non-renewal issued on 29th August 2018; and terminal dues were paid following the expiry on 30th September 2018. Since the contract ended on its sunset date and terminal dues were paid, there was no unlawful termination and nothing for the Claimant to recover for the non-renewal.

p. 4

Legal principles established

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  • Fixed term contracts terminate by effluxion of time and a court cannot rewrite the terms of a contract freely entered into by the parties

Court orders

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  1. 1.The suit is dismissed
  2. 2.Each party will bear their own costs

Authorities

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Cases cited (6)

  • Teresa Carlo Omondi v Transparency International- Kenya
    [2017] eKLR
  • Amatsi Water Services Company Limited v Francis Shire Chachi
    [2018] eKLR
  • National Water Conservation & Pipeline Corporation vs Jayne Kanini Mwanza
    Civil Appeal No. 178 of 2014 (UR)
  • Bernard Wanjohi Muriuki vs Kirinyaga Water And Sanitation Company Limited & Another
    [2012] eKLR
  • Oshwal Academy (Nairobi)
  • SA Rugby (Pty) Ltd vs CCMA & Others
    (2006) 27 ILJ 1041 (LC)
Jurisdiction invoked
Original employment and labour relations jurisdiction of the Employment and Labour Relations Court (claim under the Employment Act for unfair termination and redundancy); no specific constitutional or statutory provision is quoted in 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, "Tom Ukiru Kamaliki v Centres for International Programs Kenya [2021] KEELRC 716 (KLR)", Case Analysis (2021). Cause No 1405 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/716/eng@2021-09-28

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