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ELRCPartially AllowedNot stated in the judgment (Cause instituted on 12 July 2023)

Musau v World Vision Kenya (Cause E049 of 2023) [2024] KEELRC 79 (KLR)

Employment and Labour Relations Court
31 January 2024
1,722 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court awarded a long-serving employee 10 months' pay because 15 years of renewals created a legitimate expectation her contract would be renewed.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent from 2005 on repeatedly renewed fixed-term contracts and ultimately as Grants Coordinator under a contract running from 1 October 2018 to 30 September 2020, sued for unfair termination, discrimination on account of pregnancy and breach of contract. In July 2020 she applied for annual leave and maternity leave commencing 26 August 2020; on 21 July 2020 the Respondent notified her that her contract would lapse on 30 September 2020 and that she should hand over and clear. The Court framed issues on unfair termination, lawful redundancy, legitimate expectation of renewal, pregnancy discrimination and entitlement to reliefs. On unfair termination, the Court held that the Claimant did not discharge her burden under section 47(5) of the Employment Act, 2007, as the contract simply lapsed rather than being terminated for misconduct, poor performance or incapacity under sections 41 and 44. On discrimination, the Court found no evidence that declining maternity leave beyond the contract's expiry was discriminatory, the non-renewal notice predating the maternity leave application. However, on legitimate expectation, the Court held that 15 years of continuous service, repeated renewals, promotions, a salary increase a year before lapse, and a clean disciplinary record, coupled with the Respondent's failure to substantiate any restructuring or engage the Claimant on alternative openings, breached the legitimate expectation of renewal. The Court declared the breach and awarded damages equivalent to 10 months' gross wages (Kshs 3,196,720/-), with costs and interest from the date of judgment. Judgment was delivered virtually from Kisumu on 31 January 2024 by Radido Stephen, Judge.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the termination of the Claimant's employment was unfair, wrongful/unlawful for want of procedural fairness and substantive justification
  2. 2.Whether the Respondent's action to declare the Claimant redundant was procedural and lawful
  3. 3.Whether the Respondent by conduct had created a legitimate expectation of renewal of contract
  4. 4.Whether the Respondent's conduct towards the Claimant amounts to discrimination on account of pregnancy
  5. 5.Whether the Claimant served the Respondent diligently
  6. 6.Whether the Claimant is entitled to the prayers/reliefs sought

Key legal issues

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01

Whether the non-renewal of a fixed-term contract amounted to unfair termination

Holding

The claim of unfair termination under section 41 of the Employment Act failed because the contract lapsed by expiry rather than being terminated on the statutory grounds

Reasoning

Under section 47(5) of the Employment Act, 2007, a claimant must first demonstrate that unfair termination occurred. The grounds for termination under sections 41 and 44 are misconduct, poor performance or physical incapacity. Here the Respondent merely notified the Claimant that her fixed-term contract was lapsing and she should hand over and clear. The Court therefore found unfair termination was not proved to the required standard.

p. 3
02

Whether the Respondent's conduct created a legitimate expectation of renewal of the fixed-term contract

Holding

The Claimant's legitimate expectation of renewal was breached by the Respondent's conduct, entitling her to damages

Reasoning

The Claimant served continuously for 15 years with repeated renewals, promotions and a salary increment a year before the contract lapsed, and had no disciplinary history. The Respondent never suggested her role had become superfluous nor adduced evidence of any restructuring, taking a casual approach. Under the principle of fair dealing, the Respondent owed a duty to engage the Claimant about alternative openings before allowing the contract to lapse.

p. 4
03

Whether the Respondent discriminated against the Claimant on account of pregnancy

Holding

The discrimination claim failed for lack of evidence

Reasoning

The Claimant applied for maternity leave to start on 26 August 2020, but the Respondent had already notified her on 21 July 2020 that the contract would lapse on 30 September 2020. In the absence of further evidence, the Court could not find that the failure to approve maternity leave beyond the contract's expiry was discriminatory. The claim that pregnancy caused the non-renewal was not made out.

p. 4

Legal principles established

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  • Fixed-term contracts carry no rights, obligations or expectations beyond their date of expiry, unless unique circumstances of the employment relationship create a legitimate expectation of renewal
  • The burden of proving a legitimate expectation of renewal lies on the employee, who must show clear and unambiguous representation, inducement by the decision-maker, and objective reasons such as repeated renewals

Court orders

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  1. 1.The Court finds and declares that the Respondent breached the Claimant's legitimate expectation of the renewal of the contract
  2. 2.Damages of Kshs 3,196,720/- (equivalent to 10 months' gross wages at Kshs 319,672/-) awarded to the Claimant
  3. 3.The Claimant to have costs of the Cause
  4. 4.Interest on the award from the date of judgment

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance Cause for unfair termination, discrimination and breach of contract)

Relief refused

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Claim of unfair termination of employment under section 41 of the Employment Act

The Claimant did not prove the contract was terminated on grounds of misconduct, poor performance or physical incapacity; the contract simply lapsed

p. 3

Claim of discrimination on account of pregnancy

The notice of non-renewal preceded the maternity leave application, and no evidence showed the failure to approve maternity leave beyond the contract's expiry was discriminatory

p. 4

Costs

The Claimant to have costs and interest on the award from the date of judgment.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

we note that fixed-term contracts carry no rights, obligations, or expectations beyond the date of expiry.
p. 3Legal effect of expiry of fixed-term contracts
The burden of proof, in legitimate expectation claims, is always on the Employee.
p. 3Burden of proof in legitimate expectation claims
The Respondent did not put before this Court any evidence that there was a need to restructure. It appears to have taken a casual approach to the restructuring, if there was one.
p. 4Employer's evidential burden where restructuring is invoked
The Court finds and declares that the Respondent breached the Claimant's legitimate expectation of the renewal of the contract.
p. 5Declaration of breach - final orders
The Claimant is awarded: Damages Kshs 3,196,720/- The Claimant to have costs and interest on the award from the date of judgment.
Final orders - award, costs and interest

Issues in the judgment

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minor

The judgment omits the Cause number in its header; the case number had to be left as not stated

minor

Comparative authority cited as 'AG of Hong King' in the judgment text, an apparent typographical error for Hong Kong

minor

Quoted passages contain typographical errors ('fiouted', 'superfiuous', 'efiuxion', 'afiront') suggesting a ligature/conversion defect in the document

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, "Musau v World Vision Kenya (Cause E049 of 2023) [2024] KEELRC 79 (KLR)", Case Analysis (2024). Not stated in the judgment (Cause instituted on 12 July 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/79/eng@2024-01-31

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