Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedNot stated in the excerpt provided· [2023] KEELRC 3364 (KLR)

Mbatia v Kirinyaga Water & Sanitation Company (KIRIWASCO)) (Employment and Labour Relations Cause 851 of 2022) [2023] KEELRC 3364 (KLR)

Employment and Labour Relations Court
14 December 2023
BMB. O. M. Manani
5,032 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court confirmed that employers can freely decline to renew fixed term contracts unless the contract clearly obliges them to renew.

What this practically means

#

Executive summary

#
The Claimant, formerly the Respondent's Procurement Manager, sued after the Respondent's Board declined to renew her three-year fixed term contract which lapsed in August 2021. She claimed she had a legitimate expectation of renewal based on 13 years of service, a renewal clause in her contract, informal assurances from the Managing Director, and her previous permanent and pensionable status as Procurement Officer. She sought declarations of unfair termination and unconstitutional unfair labour practice, reinstatement, and general damages. The court framed seven issues. It found that although her casual employment from 2008 to 2010 attracted decasualization under section 37 of the Employment Act, that claim was time barred under section 90, and article 41 of the 2010 Constitution could not apply retrospectively. Her acceptance of the 2018 fixed term contract voluntarily extinguished her permanent and pensionable status. On legitimate expectation, the court applied the objective test: a renewal clause merely prescribes a procedure and creates no obligation to renew; informal assurances from the Managing Director were legally ineffective because only the Board could renew. Neither the renewal nor performance clauses tied renewal to performance. Absent an obligating clause, the employer's discretion not to renew was unfettered, and there was no duty to give notice or reasons beyond effluxion of time. All reliefs were refused. The suit was dismissed with costs to the Respondent on 14th December 2023.

Key legal issues

#
01

Whether casual employment between 2008 and 2010 violated section 37 of the Employment Act

Holding

The casual engagement violated section 37, but the claim is time barred under section 90 and article 41 cannot be applied retrospectively

Reasoning

The court found the Claimant's casual service from August 2008 to March 2010 attracted decasualization under section 37, but she never sought decasualization while the violation subsisted. The constitutional claim fails because the 2010 Constitution was not in force, and the section 37 claim is more than three years late under section 90.

p. 4
02

Effect of the 2018 fixed term appointment on the permanent and pensionable status

Holding

Acceptance of the fixed term Procurement Manager position extinguished the permanent and pensionable contract

Reasoning

The Claimant was deployed in acting capacity in 2017 without losing her permanent terms, but she then voluntarily applied for, was interviewed for, and accepted the substantive fixed term Procurement Manager position. Her acceptance extinguished the earlier contract and she cannot blame the Respondent for losing permanent status.

p. 5
03

Whether the Claimant had legitimate expectation of renewal

Holding

No legitimate expectation arose; the renewal clause merely set a procedure, and no promise or established practice bound the employer

Reasoning

Applying the objective test from KRA v Export Trading Co and Teresa Carlo Omondi, the court found no clear, unambiguous representation by a person with authority. The Managing Director's alleged informal assurances could not bind the Respondent since only the Board could renew. The renewal clause alone does not create an obligation to renew.

p. 7
04

Whether renewal was tied to performance

Holding

The renewal and performance clauses did not tie renewal to performance, so good performance alone cannot compel renewal

Reasoning

The court compared the contract's renewal and performance clauses and found no promise that excellent performance would trigger automatic renewal. Absent an express stipulation, an employee cannot rely on good performance to force renewal.

p. 8
05

Whether the Respondent was duty bound to give notice and reasons for non-renewal

Holding

No duty to give notice or reasons beyond effluxion of time unless the contract requires it

Reasoning

Following Bernard Wanjohi Muriuki v Kirinyaga Water & Sanitation Co, the court held that a fixed term contract lapses automatically on its sunset date, and the only reason the employer need give is that the term has ended. The renewal clause merely prescribed the procedure for seeking renewal.

Legal principles established

#
  • Unless a fixed term contract contains a clause obligating the employer to renew it, the decision to renew is at the employer's unfettered discretion
  • A legitimate expectation of renewal requires objective evidence of a clear and unambiguous promise or regular practice, not a mere renewal clause
  • An employer has no obligation to give notice or reasons for non-renewal of a fixed term contract beyond effluxion of time, unless the contract requires it
  • A fixed term contract terminates on its sunset date unless extended in terms stated in the contract, and a court cannot rewrite the contract

Court orders

#
  1. 1.The Claimant's case against the Respondent is found unmerited
  2. 2.The suit is dismissed with costs to the Respondent

Authorities

#

Legislation

  • Employment Actsection 37 (and 37(4))
  • Employment Actsection 90
  • Constitution of Kenya 2010article 41

Cases cited (6)

  • Kenya Revenue Authority v Export Trading Company Limited
    (Petition 20 of 2020) [2022] KESC 31 (KLR) (Civ) (17 June 2022)
  • Republic v Pharmacy and Poisons Board & 2 others Ex-parte Juliet Lihemo Agufa
    [2015] eKLR
  • Teresa Carlo Omondi v Transparency International- Kenya
    [2017] eKLR
  • Amatsi Water Services Company Limited v Francis Shire Chachi
    [2018] eKLR
  • National Water Conservation & Pipeline Corporation vs Jayne Kanini Mwanza
    Civil Appeal No. 178 of 2014 (UR)
  • Bernard Wanjohi Muriuki vs Kirinyaga Water And Sanitation Company Limited & Another
    [2012] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and article 41 of the Constitution of Kenya 2010 (right to fair labour practices)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (9)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Mbatia v Kirinyaga Water & Sanitation Company (KIRIWASCO)) (Employment and Labour Relations Cause 851 of 2022) [2023] KEELRC 3364 (KLR)", Case Analysis (2023). Not stated in the excerpt provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3364/eng@2023-12-14

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