Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedPetition No E029 of 2021· [2022] KEELRC 352 (KLR)

Enid Nkirote Mukire v Kenya Yearbook Editorial Board [2022] KEELRC 352 (KLR)

Employment and Labour Relations Court
18 March 2022
MOMAUREEN ONYANGO
7,414 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~30 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court confirmed that a fixed-term contract simply ends when it expires, with no right to notice, reasons, or renewal.

What this practically means

#

Executive summary

#
The Petitioner, formerly an Associate Editor at the Kenya Yearbook Editorial Board, petitioned the Employment and Labour Relations Court contending that her engagement on repeated fixed-term contracts, her confirmation after probation without admission to the permanent and pensionable establishment, and the Board's refusal to renew her final contract infringed her constitutional rights to fair labour practices, freedom from discrimination and fair administrative action, and amounted to constructive dismissal and unfair termination under section 45 of the Employment Act. She sought numerous declarations, twelve months' salary as damages, general damages, costs and interest. The Respondent maintained that she voluntarily agreed to fixed-term contracts, that all Technical Department staff were placed on contract because workload was time-bound, that the 2018 contract was a distinct contract following a fresh advertisement and interview, and that a fixed-term contract lapses by effluxion of time with no expectancy of renewal. The court framed four issues: whether the Petitioner was wrongly placed on contract terms; whether Articles 41 and 47 were violated; whether she was constructively dismissed; and whether she was entitled to reliefs. The court held that the HR Manual permitted contract engagement of any category of employee, that the last contract was a distinct fixed-term contract which expired by effluxion of time without need for notice, hearing or reasons, that the Promotion Kenya merger memo created no legitimate expectation since the merger did not exist when the contract lapsed, and that there was no constructive dismissal. The petition was dismissed with each party bearing its own costs.

Key legal issues

#
01

Whether the Petitioner was wrongly placed on contract terms contrary to the Respondent's HR Manual

Holding

No. The HR Manual permits contract appointment of any category of employee, not only senior grades KYEB 1–3.

Reasoning

Clause 2.13.1 allows contract appointments where capacity is lacking or specific skills required, among other grounds. The court found the Manual did not confine contract terms to senior staff. Further, the record showed the first engagements lapsed and the final 2018 contract arose from a fresh advertisement and interview, so she was not on nine continuous years of contracts.

p. 9
02

Whether the non-renewal amounted to unfair termination or constructive dismissal

Holding

No. The contract expired by effluxion of time; no dismissal, actual or constructive, occurred.

Reasoning

Fixed-term contracts carry their own expiry; sections 41 and 45 and disciplinary processes do not apply. Constructive dismissal requires the employee to terminate because of the employer's repudiatory conduct; here the employee simply left upon lapse of the contract, so the Coca Cola ingredients were not met.

p. 10
03

Whether a legitimate expectation of renewal or absorption arose from the CEO's memo on the Promotion Kenya merger

Holding

No. The memo promised nothing specific and the merger did not exist when the contract lapsed.

Reasoning

The letter did not state that staff with lapsed contracts would get new contracts or that all staff would be retained. The new entity was merely a proposal with its own future structures. A lapsed contract leaves nothing to preserve, so no legitimate expectation of continued employment could arise.

p. 9
04

Whether Articles 41 and 47 were violated

Holding

No. The Petitioner failed to prove violation of fair labour practices or fair administrative action.

Reasoning

Having been on a fixed-term contract that lapsed, she was entitled neither to notice nor to a hearing nor to reasons for non-renewal, and the Board's discretion on renewal was properly exercised under the HR Manual. The averments of discrimination were also unsupported since all Technical Department staff were on contract.

p. 10

Legal principles established

#
  • An employee on a fixed term contract needs no notice of termination and no reasons need be given; the contract ends on expiry of its term without invoking sections 41 and 45 of the Employment Act
  • There is no legitimate expectation of renewal of a fixed-term contract unless the employer has expressly communicated renewal
  • Only what is in existence is capable of being preserved; a lapsed contract cannot ground a legitimate expectation via a prospective merger

Court orders

#
  1. 1.The petition is dismissed
  2. 2.Each party to bear its costs

Authorities

#

Legislation

  • Constitution of Kenya, 2010Articles 41, 47, 159(2)(d), 48, 236
  • Employment ActSections 5, 10, 35(1), 41, 42, 43(1), 45
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1
  • Kenya Yearbook Order2007

Cases cited (21)

  • Benjamin Nyambati Ondiba v Egerton University
    [2014] eKLR
  • Joseph Aleper & Another v Lodwar Water and Sanitation Company Limited
    [2016] eKLR
  • Coca Cola East & Central Africa Limited v Maria Kagai Ligaga
    [2015] eKLR
  • Joseph Maina Theuri v Gitonga Kabugi & 3 others
    [2017] eKLR
  • Kenya County Government Workers' Union v County Government of Nyeri & another
    [2015] eKLR
  • Esther Njeri Maina v Kenyatta University
    [2020] eKLR
  • Air-India Statutory Corporation v United Labour Union cited in V M K v C U E A
    [2013] eKLR
  • Judicial Service Commission v Mbalu Mutava & Another
    [2015] eKLR
  • County Assembly of Kisumu & 2 others v Kisumu County Assembly Service Board & 6 others
    [2015] eKLR
  • Samuel Chacha Mwita v Kenya Medical Research Institute
    [2014] eKLR
  • Kenya Plantation and Agricultural Workers Union v Kenya Cuttings Limited
    [2013] eKLR
  • Geoffrey Mworia v Water Resources Management Authority
    [2015] eKLR
  • John Moogi Omare v Kenya National Commission for Unesco
    [2020] eKLR
  • Margaret A. Ochieng v National Water Conservation and Pipeline Corporation
    [2014] eKLR
  • George Onyango v The Board of Directors Numerical Machining Complex Limited & Others
    [2014] eKLR
  • Bernard Wanjohi Muriuki v Kirinyaga Water and Sanitation Company Limited and Others
    Cause No. 1541 of 2010
  • Ruth Gathoni Ngotho-Kariuki v The Presbytery Church of East Africa & Anor
    [2012] eKLR
  • Frencbon v The Secretary-General of the United Nations
    UN AT Case No. 2010-125
  • George Onyango Akuti v Security Services Kenya Limited
    [2013] eKLR
  • Elizabeth Washeke and 62 Others v Airtel Networks (K) LTD & another
    [2013] eKLR
  • Stephen M. Kitheka v Kevita International Limited
    [2018] eKLR
Jurisdiction invoked
Article 41 and 47 of the Constitution of Kenya, 2010 (constitutional petition on fair labour practices and fair administrative action)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (17)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Enid Nkirote Mukire v Kenya Yearbook Editorial Board [2022] KEELRC 352 (KLR)", Case Analysis (2022). Petition No E029 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/352/eng@2022-03-18

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