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ELRCDismissedCause No 180 of 2018· [2023] KEELRC 270 (KLR)

Muthee v Network of African National Human Rights Institutions (Cause 180 of 2018) [2023] KEELRC 270 (KLR)

Employment and Labour Relations Court of Kenya
2 February 2023
4,258 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled that a fixed-term contract that simply expires is not an unfair dismissal, and pregnancy claims need solid evidence of a link.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as Programmes Manager on a one-year fixed term contract from 4th January 2016, renewable subject to performance and availability of funds, had her contract renewed once in January 2017. On 25th October 2017 the Respondent issued two months' notice of non-renewal citing poor performance. The Claimant sued, seeking declarations that the non-renewal violated section 5(3) of the Employment Act, Articles 27(5) and 41(1) of the Constitution, sections 45 and 46(a) of the Employment Act, and ILO Maternity Protection Convention No. 183, alleging the non-renewal was discriminatory because she was pregnant and unfair for want of performance appraisal and adherence to the HR Manual. The Respondent maintained the contract expired automatically, that performance concerns were documented and communicated, and that the notice preceded any knowledge of the pregnancy. The court framed two issues: whether the employment ended by termination or by affluxion of time, and entitlement to remedies. Relying on Samuel Chacha Mwita, Minnie Mbue, Kenneth Karise Kasemo and the Presbyterian Church of East Africa case, the court held that a fixed term contract naturally terminates at its expiry and renewal requires mutual consent; no legitimate expectation of renewal arose. It found no evidence connecting the non-renewal to the pregnancy, since the notice predated the communication of the pregnancy. The claim was dismissed with each party to meet their own costs.

Key legal issues

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01

Whether the Claimant's employment ended by termination or by affluxion of time

Holding

The one-year fixed term contract expired by affluxion of time; there was no obligation to renew and no legitimate expectation of renewal

Reasoning

The contract was expressly renewable subject to performance and availability of funds and was renewed only once. The employer gave two months' notice of non-renewal and stated reasons (poor performance). Following Samuel Chacha Mwita, Minnie Mbue, Kenneth Karise Kasemo and the PCEA case, the court held renewal required mutual consent and that courts cannot imply terms or interfere with duly executed contracts.

p. 8
02

Whether non-renewal was discriminatory on account of pregnancy

Holding

No evidence linked the non-renewal to the pregnancy; the notice issued before the Respondent knew of the pregnancy

Reasoning

The non-renewal notice dated 25th October 2017 preceded the Claimant's 2nd November 2017 communication of her pregnancy. The court found no correlation between the pregnancy and the expiry of the contract and rejected the discrimination claim under section 5(3) of the Employment Act and Article 27(5) of the Constitution.

p. 8
03

Whether the Claimant was entitled to remedies for unfair or wrongful termination

Holding

No remedies due because there was no unfair or wrongful termination; the claim was dismissed

Reasoning

Having found that the contract expired by effluxion of time and that no constitutional or statutory rights were violated, the court concluded there was no case for unfair or wrongful termination and dismissed the entire claim with each party bearing their own costs.

p. 8

Legal principles established

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  • A fixed term employment contract naturally terminates at its expiry date unless the parties specifically agree to renew it
  • The court's role is to enforce contracts as agreed, not to rewrite them

Court orders

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  1. 1.The case filed by the Claimant is dismissed
  2. 2.Each party to meet their own costs

Authorities

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Legislation

  • Employment Actsection 5(3)
  • Employment Actsection 41(1)
  • Employment Actsection 45
  • Employment Actsection 46(a)
  • Constitution of KenyaArticle 27(5)
  • Constitution of KenyaArticle 41(1)
  • Constitution of KenyaArticle 23(3)
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • ILO Maternity Protection Convention Number 183 (2000)Articles 4 and 8
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B

Cases cited (9)

  • Jane Wairimu Machira versus Mugo Waweru and Associates
    2012 eKLR
  • Kenya Science Research International Technical and Allied Workers Union (KSRITAWU) versus Stanley Kinyanjui and Magnate Ventures Ltd
    Cause No. 273 of 2010
  • Mutua Mulonzya vs Fellowship of Christian Councils and Churches in the Great Lakes and Horn of Africa
    (2020) eKLR
  • Samuel Chacha Mwita versus Kenya Medical Research Institute
    2014 eKLR
  • Teresa Carlo Omondi versus Transparency International- Kenya Ltd
  • Bernard Wanjohi Muriuki versus Kirinyaga Water & Sanitation Company Limited and Another
    2012 eKLR
  • Minnie Mbue vs Jamii Bora Bank Limited
    (2017) eKLR
  • Kenneth Karise Kasemo vs Kenya Bureau of Standards
    2013 eKLR
  • Registered Trustees of Presbyterian Church of East Africa & Another vs Ruth Gathoni Nguthi
    Cause No 509 of 2010
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under Article 162(2) of the Constitution (claim for violation of Articles 27(5) and 41(1) and sections 5(3), 45, 46(a) of the Employment Act)

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, "Muthee v Network of African National Human Rights Institutions (Cause 180 of 2018) [2023] KEELRC 270 (KLR)", Case Analysis (2023). Cause No 180 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/270/eng@2023-02-02

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