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ELRCDismissedPetition (amended petition dated September 9, 2022) - number not stated in judgment· [2023] KEELRC 665 (KLR)

Chesire v National Aids Control Council (Employment and Labour Relations Petition E104 of 2022) [2023] KEELRC 665 (KLR)

Employment and Labour Relations Court
17 March 2023
2,551 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Employment Court confirmed that fixed-term contracts end automatically when they expire, and employers have no obligation to renew them.

What this practically means

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Executive summary

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The petitioner, formerly Deputy Director Coordination & Support at the National Aids Control Council (NACC), having been seconded from the Kenya Medical Training College in 2012, petitioned challenging the decision not to renew her contract. She sought rescission of the termination decision, declarations that the March 11, 2022 letter and the non-renewal were null and void, that the respondent remained bound by the June 22, 2015 contract until June 21, 2024 or, in the alternative, payment of full remuneration and benefits to that date, a mandatory injunction compelling reinstatement, general damages for violation of fundamental rights, and costs. She relied on clause 1(ii) of the June 2015 contract, contending renewals were to run for three years. The respondent maintained that the petitioner was employed on successive fixed term contracts with different terms and positions, that the final one-year contract expiring June 22, 2022 was accepted by her, that renewal was a prerogative of the board and not guaranteed, and that courts cannot rewrite contracts. Relying on authorities including National Bank of Kenya Ltd vs Pipe Plastic Samkolit (K) Ltd and Pius Kimatya Langat vs Co-operative Bank of Kenya Ltd, the court framed one issue: whether the petitioner was terminated unlawfully or whether her contract expired by effluxion of time. The court held that each fixed term contract expired by effluxion of time, the contracts were not connected, the relied-upon clause had expired in 2018, and no automatic or legitimate expectation of renewal arose. No coercion, fraud or undue influence was proved. All prayers were dismissed, the mandatory injunction declined, and each party was ordered to bear its own costs.

Key legal issues

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01

Whether the petitioner's employment was unlawfully terminated or expired by effluxion of time

Holding

The petitioner was employed on successive fixed term contracts, each of which expired by effluxion of time; the last one-year contract was accepted by her and was not terminated by the respondent

Reasoning

The court traced the contracts from 2012, noting each had different terms and positions, were not connected to each other, and carried no guarantee of automatic renewal. The clause relied on (paragraph 1(ii) of the June 2015 contract) had already expired in 2018 and in any event made renewal dependent on the council's decision. The petitioner accepted the final one-year contract with gratitude.

p. 5
02

Whether the petitioner had a legitimate expectation of renewal for three years

Holding

No; paragraph 1(ii) gave no automatic legitimate expectation of renewal since the decision whether or not to renew was reserved to the council, and renewal was subject to satisfactory performance and board approval

Reasoning

The court held the petitioner erroneously invoked a clause of a contract that had already expired in 2018. The clause itself vested the renewal decision in the council, so no blanket or automatic expectation of renewal ever arose.

p. 5
03

Whether a mandatory injunction to reinstate the petitioner should issue

Holding

Declined; the petitioner did not demonstrate a case with a high chance of probability or compelling reasons, and no public interest was shown

Reasoning

The court found the petitioner had not argued out a case with high chance of probability, that a fixed contract cannot be supported once expired absent compelling reasons, and that no evidence of public interest was adduced.

p. 6

Legal principles established

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  • Fixed term contracts expire by effluxion of time and there is no automatic or legitimate expectation of renewal where renewal is subject to the employer's decision or board approval
  • Courts do not rewrite contracts between parties; parties are bound by their terms unless coercion, fraud or undue influence is pleaded and proved

Court orders

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  1. 1.Prayers A, B, C, D, D1, E, F and G of the petition are dismissed for lack of evidence that the petitioner was terminated unlawfully and unconstitutionally
  2. 2.The prayer for a mandatory injunction reinstating the petitioner is declined
  3. 3.Each party will bear their own costs

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Human Resources Administration Policies and Regulations2009 (renewal of employment contract not guaranteed; prerogative of the board)

Cases cited (6)

  • Board of Management of Uhuru Secondary School vs City County Director of Education and 2 Others
    [2015] eKLR
  • Gatirao Peter Munya vs Dickens Mwenda Kithinji & 2 Others
  • National Bank of Kenya Ltd vs Pipe Plastic Samkolit (K) Ltd & Another
    2011 eKLR
  • Pius Kimatya Langat vs Co-operative Bank of Kenya Ltd
    2017 eKLR
  • Centre for Rights Education and Awareness (CREW) & 7 Others
  • Anytime Limited vs Fredrick Omuraya
    Case No 096 of 2021
Jurisdiction invoked
Constitutional petition invoking fundamental rights and freedoms (Articles 159(2)(d) and 48 of the Constitution invoked in the delivery directions); specific enabling provision for the petition not stated 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, "Chesire v National Aids Control Council (Employment and Labour Relations Petition E104 of 2022) [2023] KEELRC 665 (KLR)", Case Analysis (2023). Petition (amended petition dated September 9, 2022) - number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/665/eng@2023-03-17

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