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ELRCDismissedPetition filed 16.05.2023 (number not stated in judgment)· [2023] KEELRC 1499 (KLR)

Awino v Human Resource Management Professional Examination Board (Employment and Labour Relations Petition E089 of 2023) [2023] KEELRC 1499 (KLR)

Employment and Labour Relations Court
22 June 2023
BOByram Ongaya
2,077 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed that even with a strong performance score, a contract renewal clause does not guarantee automatic renewal.

What this practically means

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Executive summary

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Dr. Douglas Ogolla Awino, Chief Executive Officer of the Human Resource Management Professionals Examination Board (a state corporation), petitioned the Employment and Labour Relations Court after his three-year fixed-term contract, due to lapse on 30th April 2023, was not renewed. By a letter dated 3rd April 2023, the Board's chairperson communicated non-renewal without reasons and directed him to proceed on terminal leave. The petitioner sought declarations of entitlement to renewal, a finding that the non-renewal violated Articles 10, 27, 41 and 232, orders of certiorari, prohibition and mandamus, damages, and costs. He argued that under the contract's renewal clauses, the Mwongozo Code and the Board's HR policy, satisfactory performance - which he said he achieved, scoring an average of 78.645% - was the sole condition for renewal, generating a legitimate expectation. The respondent, through a replying affidavit of chairperson CS. Sharon Kisire, relied on a Human Resource, Finance and Strategy Committee report of 31st March 2023 detailing ten areas of underperformance, including poor relations with employees and stakeholders, late Board papers and statutory reports, poor record-keeping, unchecked examination malpractices and failure to implement audit findings, and submitted the fixed-term contract carried no expectation of automatic renewal. The court held that the renewal clause did give rise to a legitimate expectation of consideration for renewal (applying Rika J's dictum in Teresa Carlo Omondi v Transparency International Kenya), but that renewal was not automatic; the contract did not confine performance to evaluation scores, and the petitioner failed to rebut the adverse committee findings. The respondent acted within the contractual renewal clause, and the pleaded constitutional violations were not established. The petition was dismissed with each party bearing its own costs.

Key legal issues

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01

Whether a renewal clause linked to performance generates a legally protected legitimate expectation

Holding

The renewal clause evolved into a legitimate expectation that renewal would be considered as agreed

Reasoning

Relying on Rika J's holding in Teresa Carlo Omondi v Transparency International Kenya and the undisputed renewal clause, the court found that the employer, through the express contractual promise of renewal subject to performance, led the petitioner to legitimately expect that renewal would be considered.

p. 5
02

Whether the respondent performed the renewal clause in declining to renew the contract

Holding

The respondent acted within the contractual renewal clause; the petitioner did not rebut the adverse committee findings on his performance

Reasoning

Although the petitioner's scores (78.645%) appeared good, the contract did not limit performance to scores alone. The Board committee identified ten areas of underperformance including poor working relationships, poor stakeholder relations, late statutory reports and poor records keeping, which the petitioner did not rebut. Renewal was therefore not automatic.

p. 6
03

Whether the non-renewal violated Articles 10, 27, 41, 47 and related constitutional provisions

Holding

The petitioner failed to establish the pleaded violations

Reasoning

Having found the decision to decline renewal was grounded in performance considerations permitted by the contract, the court concluded that none of the constitutional rights pleaded - fair labour practices, fair administrative action, dignity and others - were violated by the non-renewal decision.

p. 6

Legal principles established

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  • A contractual renewal clause tied to satisfactory performance may evolve into a legitimate expectation that renewal will be considered, but such expectation does not entitle an employee to automatic renewal where the employer establishes performance considerations justifying non-renewal
  • A court will not read into a contractual renewal clause terms beyond what the parties agreed

Court orders

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  1. 1.The petition is dismissed
  2. 2.Each party to bear its own costs of the proceedings

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2, 3, 10, 20, 21, 22, 23, 27, 28, 41, 47, 48
  • Employment Act, 2007Section 45
  • Human Resources Management Professional Act No. 52 of 2012Section 16
  • Mwongozo Code of Governance for State CorporationsClause 1.5

Cases cited (1)

  • Teresa Carlo Omondi v Transparency International Kenya
    [2017] eKLR
Jurisdiction invoked
Constitution of Kenya, 2010 (petitions under Articles 2, 3, 10, 20, 21, 22, 23, 27, 28, 41, 47 and 48 as pleaded); employment and labour relations jurisdiction of the ELRC

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, "Awino v Human Resource Management Professional Examination Board (Employment and Labour Relations Petition E089 of 2023) [2023] KEELRC 1499 (KLR)", Case Analysis (2023). Petition filed 16.05.2023 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1499/eng@2023-06-22

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