Makworo v Oshwal Academy Nairobi (Cause E331 of 2023) [2023] KEELRC 3342 (KLR)
The bottom line
#Kenya's Employment Court ruled that not renewing a fixed-term contract is not unfair termination, but awarded the teacher unpaid salary, leave pay, and pension contributions.
What this practically means
#Executive summary
#Key legal issues
#Whether non-renewal of a fixed-term contract amounts to unfair termination
No; the contract terminated by effluxion of time upon expiry of its two-year term and non-renewal was not unfair termination
The Claimant was on an express two-year fixed-term contract with no renewal clause. Citing Court of Appeal authority, the court held fixed-term contracts carry no expectations beyond expiry and lapse automatically on the stated date. The employer notified non-renewal a month before expiry, so no termination occurred; the contract simply ran its course.
Whether the invitation to apply for renewal created a legitimate expectation of renewal
No; an invitation to apply implies the application could go either way and imposed no obligation on the employer to renew
The absence of a renewal clause left the parties' options open, defeating any expectation. The invitation to apply implied the decision remained with the employer's management. Following Transparency International Kenya v Teresa Carlo Omondi, no promise was made justifying a claim based on legitimate expectation.
Entitlement to unpaid salary, Provident Fund contributions and leave pay
Claimant entitled to salary up to 25th November 2021, employer's Provident Fund contribution for November 2021, and leave pay for 10 days; salary deduction refund claims failed
The Respondent failed to exhibit attendance registers to prove the Claimant's absence in November 2021, so salary up to the identified last day of duty was awarded with matching Provident Fund contribution. Leave records showed 10 pending days. Deduction refund claims failed because the Claimant's own emails admitted unauthorized absences.
Legal principles established
#- Fixed-term contracts carry no rights, obligations or expectations of renewal beyond the date of expiry
- A fixed-term contract terminates automatically by effluxion of time at the expiry of its stated term
- An invitation to apply for contract renewal does not create a legitimate expectation of renewal; whether to renew a fixed-term contract with a renewal clause is at the employer's discretion
- No claim for wrongful termination can be maintained on a contract that ended by effluxion of time
Court orders
#- 1.Unpaid salary upto 25th November 2021 in the sum of Kshs 125,000.00
- 2.Leave pay for 10 days in the sum of Kshs 68,750.00 (total award Kshs 193,750.00)
- 3.Interest on the total award at court rates from the date of Judgment until payment in full
- 4.Respondent's unremitted Provident Fund contribution of Kshs 7,500.00 to be remitted within 30 days from the date of judgment
- 5.Each party to bear their own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Act (first-instance employment cause)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Makworo v Oshwal Academy Nairobi (Cause E331 of 2023) [2023] KEELRC 3342 (KLR)", Case Analysis (2023). Cause No E331 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3342/eng@2023-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.