Mwangi v The Trustees of Premier Academy Charitable Trusr T/A Premier Academ (Cause 2161 of 2017) [2022] KEELRC 1390 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Claimant had a legitimate expectation of renewal of her fixed term contract
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.
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.
Whether the non-renewal amounted to unfair and unlawful termination
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.
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.
Whether the Respondent could rely on the Claimant's lack of TSC registration
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.
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.
Quantum of reliefs
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.
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.
Legal principles established
#- 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
#- 1.A declaration that the non-renewal of the Claimant's contract amounted to unfair and unlawful termination of employment
- 2.Award of Kshs.283,176/= as three months' salary in lieu of notice
- 3.Award of Kshs.283,176/= as compensation equivalent of 3 months' salary for unlawful termination
- 4.Judgment entered for the Claimant against the Respondent in the sum of Kshs.566,352/= plus costs
- 5.Interest to accrue at court rates from the date of judgment till payment in full
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.