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ELRCDismissedNot stated in the judgment (amended memorandum of claim dated 6th December 2021)· [2023] KEELRC 2792 (KLR)

Ngari v Nairobi City County (Employment and Labour Relations Cause 402 of 2017) [2023] KEELRC 2792 (KLR)

Employment and Labour Relations Court
3 November 2023
AMAnna Ngibuini Mwaure
3,866 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Claimant, formerly Chief Officer in charge of Water, Energy and Natural Resources with the Respondent county government, was employed on a 3-year fixed-term contract effective 1st March 2014, renewable subject to exemplary performance. He alleged that after making confidential reports exposing irregularities in the Respondent's procurement processes (including an alleged conspiracy to defraud Kshs 100,000,000 through altered tender schedules), he received notice dated 15th February 2017 that his contract would not be renewed. He claimed the non-renewal was malicious, arbitrary, discriminatory, and violated his right to fair treatment, and asserted a legitimate expectation of renewal based on a commendation letter, appointments to committees, and sponsorship of training. The Respondent maintained the contract was fixed-term with an option of renewal exercisable at its sole discretion, and that the contract simply expired by effluxion of time. The court framed three issues: legitimate expectation of renewal; whether non-renewal was unfair and a violation of fair treatment; and entitlement to reliefs. Applying Keen Kleeners and Teresa Carlo Omondi, the court held the burden lay on the employee and that the Claimant failed to prove any regular practice, express promise or employer conduct inducing a legitimate expectation; the 'exemplary performance' clause was too ambiguous to found one, and the commendations and trainings were part of ordinary employment. The court found no mischief: the contract terminated by effluxion of time, well within its terms. The claim was dismissed with each party bearing their own costs.

Key legal issues

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01

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

Holding

No legitimate expectation was proved; the exemplary-performance clause was ambiguous and no promise, practice or conduct by the Respondent induced a legitimate expectation of renewal.

Reasoning

The court applied the test that the burden is on the employee to show regular practice, express promise or employer conduct inducing a legitimate expectation. The commendation letter, committee appointments and training trips were held to be part of the ordinary course of employment. The 'renewable subject to exemplary performance' clause was found too ambiguous to found an expectation, and no assurance or previous renewal practice was proved.

p. 7
02

Whether the failure to renew was unfair and violated the Claimant's right to fair treatment

Holding

No. The contract terminated by effluxion of time on expiry of the 3-year fixed term, and the notice of 15th February 2017 was within the contract's contemplation.

Reasoning

The Claimant's own testimony fixed the expiry date as 28/2/2017 and the appointment letter set a 3-year term from 1st March 2014. The notice of expiry dated 15th February 2017 was issued within the contract's terms. The court found no mischief in the Respondent's actions and held the right to fair treatment was not violated.

p. 8

Legal principles established

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  • The burden of proving legitimate expectation of renewal of a fixed-term contract lies on the employee, who must show regular practice, express promise or conduct inducing the expectation.
  • Where a fixed-term contract expires, the parties are bound by it and it lapses by effluxion of time except in exceptional circumstances.

Court orders

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  1. 1.The claim is dismissed.
  2. 2.Each party to bear their respective costs of the suit.

Authorities

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Legislation

  • Employment Actsection 35(1)
  • Employment Actsection 44(2)
  • Employment Actsection 41(1)
  • Employment Actsection 45(1)
  • Constitution of KenyaArticle 232(e)
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1
  • Labour Relations Act (South Africa)Section 186(b)

Cases cited (12)

  • John Nduba v Africa Medical and Research Foundation (AMREF)
    [2020] eKLR
  • Samuel Chacha Mwita v Kenya Medical Research Institute
    [2014] eKLR
  • George S Onyango OGW v Board of Directors of Numerical Machining Complex Limited Minister for Industrialization, Attorney-General
    Petition No. 35 of 2012
  • Bernard Wanjohi Muriuki v Kirinyaga Water And Sanitation Company Limited & another
    [2012] eKLR
  • Ruth Gathoni Ngotho-Kariuki v Presbyterian Church of East Africa and Presbyterian Foundation
    [2012] eKLR
  • Keen Kleeners Limited v Kenya Plantation and Agricultural Workers' Union
    (Civil Appeal 101 of 2019) [2021] KECA 352 (KLR)
  • Teresa Carlo Omondi v Transparency International-Kenya
    [2017] eKLR
  • Dierks v University of South Africa
    (J399/98) [1998] ZALC 126
  • Mediterranean Woollen Mills (Pty) Ltd. v South African Clothing and Textile Workers' Union
    (143/96) [1998] ZASCA 11
  • South African Clothing and Textile Workers Union and Another v CADEMA Industries (Pty) Ltd
    (C 277/05) [2008] ZALC 5
  • Communication Commission of Kenya & 4 others v Royal Media Services Ltd & 4 others
    [2014] eKLR
  • Caroline Muthoni Njoroge v LUCT Health
    (2019) eKLR
Jurisdiction invoked
Employment and labour relations jurisdiction (Employment Act; contract of service dispute)

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, "Ngari v Nairobi City County (Employment and Labour Relations Cause 402 of 2017) [2023] KEELRC 2792 (KLR)", Case Analysis (2023). Not stated in the judgment (amended memorandum of claim dated 6th December 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2792/eng@2023-11-03

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