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ELRCPartially AllowedNot stated in the judgment· [2022] KEELRC 1390 (KLR)

Mwangi v The Trustees of Premier Academy Charitable Trusr T/A Premier Academ (Cause 2161 of 2017) [2022] KEELRC 1390 (KLR)

Employment and Labour Relations Court
5 July 2022
4,828 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that an employer's email promising a contract renewal created a legal expectation, making non-renewal unfair termination.

What this practically means

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Executive summary

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The Claimant, a teacher at the Respondent's international school, sued over the non-renewal of her fixed term contract which lapsed on July 31, 2017, alleging unfair, wrongful, discriminatory and malicious termination. She sought a declaration, 12 months' salary as compensation or severance, three months' notice pay, general and exemplary damages, costs and interest. The Respondent maintained that her contracts were independent fixed term engagements with no renewal clauses, that the signed letter of intent was a mere invitation to treat, and that she lacked TSC registration. The court framed three issues: legitimate expectation of renewal, whether non-renewal amounted to unfair termination, and entitlement to reliefs. Applying the principle that fixed term contracts carry no inherent expectation of renewal but recognising exceptions based on employer conduct, previous renewals and promises, the court held that the request for an expression of intent and the HR email of May 18, 2017 promising a new contract for signature created a legitimate expectation of a further two-year term. The letter of intent itself was a mere invitation to treat. The Respondent's belated reliance on the Claimant's lack of TSC registration was rejected as approbation and reprobation. Non-compliance with sections 41 and 45 of the Employment Act and the contractual three months' notice clause rendered the non-renewal unfair and unlawful termination. The court awarded Kshs.283,176/= notice pay and Kshs.283,176/= as three months' compensation, entering judgment for Kshs.566,352/= plus costs and interest at court rates from the date of judgment. Twelve months' compensation, severance and general/exemplary damages were refused as unproved.

Key legal issues

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01

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

Holding

Yes. Although the contract had no renewal clause and letters of intent were mere invitations to treat, the Respondent's request for an expression of intent and the personal email of May 18, 2017 promising a new contract for signature created and confirmed a legitimate expectation of renewal for a further two-year term.

Reasoning

The court adopted the jurisprudence that fixed term contracts carry no inherent expectation of renewal, but recognised exceptions including previous renewal and employer conduct or promises inducing expectation. Here the Respondent had renewed once, sought the Claimant's expression of intent, and HR sent a personal email stating the contract renewal was being finalised and a new contract would be issued for signature. The Claimant discharged her burden of proving the expectation.

p. 9
02

Whether the non-renewal amounted to unfair and unlawful termination

Holding

Yes. Once a legitimate expectation of renewal was established, the Respondent was obliged to give a valid and fair reason and follow fair procedure under sections 41 and 45 of the Employment Act. It gave no reason and failed to comply with the contractual three months' notice clause.

Reasoning

The contract was terminable on three months' notice or salary in lieu. Both RW1 and RWII confirmed non-renewal required no reason. The Respondent did not address termination requirements in submissions, having contended the contract simply lapsed by effluxion of time. Because the statutory and contractual requirements were not met, the non-renewal constituted unfair and unlawful termination.

p. 10
03

Whether the Respondent could rely on the Claimant's lack of TSC registration

Holding

No. The Claimant had served for almost four years and been confirmed as a full-time teacher without a TSC number; the point only emerged when the suit was filed, amounting to impermissible approbation and reprobation.

Reasoning

The court held the statutory bar argument did not avail the Respondent because it knew of the Claimant's lack of TSC registration at appointment and throughout her service, confirming her as a full-time teacher. Raising it only in litigation, while enjoying her services, was a case of approbation and reprobation which the law abhors, citing Sonko & Another v Patel.

p. 9
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Quantum of reliefs

Holding

Notice pay of Kshs.283,176/= (based on payslip gross salary) and 3 months' compensation of Kshs.283,176/= were awarded; 12 months' compensation, severance, general and exemplary damages were refused.

Reasoning

Notice pay followed Clause 6 of the contract, computed on the payslip gross of Kshs.94,392/=. Compensation under section 49(1)(c) considered the Claimant's diligence over four years, absence of warnings or contribution to termination, and her wish to continue serving; three months was deemed fair. Discrimination and harassment were not pleaded or proved, so general and exemplary damages failed.

p. 10

Legal principles established

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  • There is generally no legitimate expectation of renewal of a fixed term contract, but the general rule is subject to exceptions such as employer practice, previous renewals, express promises, or employer conduct inducing expectation of renewal
  • An employer's conduct, including a personal email promising issuance of a new contract for signature, can crystallise a legally protected legitimate expectation of renewal notwithstanding absence of a renewal clause
  • An employer cannot approbate and reprobate - having engaged and enjoyed the services of an unregistered teacher for years, the employer cannot later rely on non-registration under the TSC Act to defeat the claim
  • A signed letter of intent to renew a contract is a mere invitation to treat and does not itself constitute a contract of employment
  • Failure to give a valid and fair reason or follow fair procedure renders a termination unfair and unlawful under sections 41 and 45 of the Employment Act, even where the employer frames it as non-renewal

Court orders

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  1. 1.A declaration that the non-renewal of the Claimant's contract amounted to unfair and unlawful termination of employment
  2. 2.Award of Kshs.283,176/= as three months' salary in lieu of notice
  3. 3.Award of Kshs.283,176/= as compensation equivalent of 3 months' salary for unlawful termination
  4. 4.Judgment entered for the Claimant against the Respondent in the sum of Kshs.566,352/= plus costs
  5. 5.Interest to accrue at court rates from the date of judgment till payment in full

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 41, 47, 159(2)(d), 48
  • Employment ActSections 41, 43, 45(2)(a),(b),(c), 45(4), 49(1)(c)
  • Teachers Service Commission ActSection 23(1)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (12)

  • Oyatsi v Judicial Service Commission (Petition E111 of 2021) [2022] KEELRC 3 (KLR)
    [2022] KEELRC 3 (KLR)
  • Teresa Carlo Omondi v Transparency International- Kenya [2017] eKLR
    [2017] eKLR
  • Mark Wafula v Board of Management Friends Secondary School Kibisi [2018] eKLR
    [2018] eKLR
  • George Ndiritu Mueithi v Premier Academy Charitable Trust [2015] eKLR
    [2015] eKLR
  • Mokaya v Kithure Kindiki t/a Kithure Kindiki & Associates (Petition 62 of 2019) [2021] KEELRC 1 (KLR)
    [2021] KEELRC 1 (KLR)
  • Bernard Wanjohi Muriuki v Kirinyaga Water and Sanitation Company Limited & another [2012] eKLR
    [2012] eKLR
  • Julius Okang’a Omulando v Tradewinds Aviation Services Limited [2022] eKLR
    [2022] eKLR
  • Savings and Loan Kenya Limited v Mayfair Holdings Limited [2012] eKLR
    [2012] eKLR
  • Registered Trustees of the Presbyterian Church of East Africa & another v Ruth Gathoni Ngotho-Kariuki [2017] eKLR
    [2017] eKLR
  • Kipkebe Limited v Peterson Ondieki Tai [2016] eKLR
    [2016] eKLR
  • John Nduba v African Medical and Research Foundation (Amref Health Africa) [2021] eKLR
    [2021] eKLR
  • Sonko & Another v Patel & Another (1955) 22 EACA 23
    (1955) 22 EACA 23
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour relations disputes (Article 162(2) of the Constitution); Employment Act, 2007

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, "Mwangi v The Trustees of Premier Academy Charitable Trusr T/A Premier Academ (Cause 2161 of 2017) [2022] KEELRC 1390 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1390/eng@2022-07-05

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