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ELRCPartially AllowedCause No E075 of 2023· [2024] KEELRC 912 (KLR)

Muhammad v Technical University of Mombasa (Cause E075 of 2023) [2024] KEELRC 912 (KLR)

Employment and Labour Relations Court
18 April 2024
3,274 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court confirmed that when a fixed-term contract ends on its expiry date, that is not unfair termination, though earned leave must still be paid.

What this practically means

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Executive summary

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The claimant, a tutorial fellow employed by the respondent university from 1st October 2016 on serially renewed fixed-term contracts, sued after his last contract lapsed on 31st March 2023 without renewal. He claimed notice pay, three overtime heads, gratuity, leave pay for 2022/2023, unpaid salaries for April and May 2023, a certificate of service and costs, contending that the allocation of duties and past renewals created a legitimate expectation of renewal and that non-renewal was a separation initiated by the respondent without a hearing. The respondent admitted the fixed-term contract but maintained it expired by effluxion of time, that no duties were allocated beyond expiry, and that claims for overtime and salaries lacked proof; gratuity was admitted subject to clearance. The court framed three issues: legitimate expectation, remedies, and costs. Applying Supreme Court and Court of Appeal authority on legitimate expectation and fixed-term contracts, the court held that the letter of 1st April 2021 expressly made renewal conditional on proof of PhD finalisation or approved milestones; the claimant satisfied neither before expiry nor after, so no legitimate expectation arose and non-renewal was not unfair termination. The overtime and salary claims failed for want of proof, the claimant never accepting the part-time teaching offer or filing worksheets. Leave pay of Ksh.103,740 was awarded as leave is a statutory right. Gratuity was admitted but made conditional on clearance, upon which a certificate of service shall issue. The court awarded leave pay only, with each party bearing its own costs.

Key legal issues

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01

Whether the respondent created a legitimate expectation of renewal of the claimant's fixed-term contract

Holding

No legitimate expectation was created; renewal was expressly conditional on proof of PhD finalisation or approved milestones, which the claimant did not satisfy before or at expiry

Reasoning

The court recited the Supreme Court principles in Communications Commission of Kenya and the Court of Appeal decision in Transparency International Kenya v Teresa Carlo Omondi that fixed-term contracts carry no expectation of renewal. The letter of 1st April 2021 expressly conditioned renewal on PhD finalisation or approved milestones. The claimant only sought renewal by email of 5 June 2023, after expiry on 31st March 2023, and filed no proof of PhD progress. The condition was unambiguous and the respondent retained discretion not to renew.

p. 6
02

Whether notice pay and compensation for unfair termination were payable

Holding

Not payable; employment ended by effluxion of time when the contract lapsed on 31st March 2023

Reasoning

Following Rajab Barasa v Kenya Meat Commission, Amatsi Water Services and Francis Odero Okello, a fixed-term contract terminates on its sunset date without notice or reasons unless the contract requires justification. The claimant's burden under Section 47(5) of the Employment Act was not discharged because there was no dismissal.

p. 6
03

Whether the overtime/part-time teaching claims were proved

Holding

Not proved; the claimant never accepted the part-time teaching offer letter and submitted no worksheets or class lists

Reasoning

The claimant admitted in cross-examination that he did not sign or return the letter of offer for part-time teaching, and that the respondent's procedure required submission of worksheets and student schedules as proof of teaching. No such records were filed and no claim for teaching from October 2022 to April 2023 was submitted. Without accepting the offer, no claim could arise from that letter.

p. 6
04

Whether leave pay for 2022/2023 was due

Holding

Yes; leave is a right under Section 28 of the Employment Act and payment in lieu is based on basic pay; Ksh.103,740 awarded

Reasoning

The respondent did not demonstrate how leave was to be addressed under the term contract and filed no record that the claimant enjoyed his leave or attendant benefits. Untaken leave converts to payment in lieu computed on basic pay, justifying the claimed Ksh.103,740.

p. 6
05

Whether gratuity and a certificate of service were payable

Holding

Gratuity is admitted but premature pending clearance; a Certificate of Service shall issue upon clearance under Section 51 of the Employment Act

Reasoning

The respondent admitted gratuity was due subject to clearance. The claimant admitted on the witness stand that he had not gone through clearance procedures. Once clearance is completed, dues shall be processed and the statutory certificate of service issued.

p. 6

Legal principles established

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  • A fixed-term employment contract does not create a legitimate expectation of renewal, and non-renewal does not amount to unfair termination warranting compensation
  • Legitimate expectation requires an express, clear and unambiguous promise by a public authority, and the expectation must be reasonable
  • Payment in lieu of untaken annual leave is a right and is computed on basic pay

Court orders

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  1. 1.The claimant is awarded Ksh.103,740 in leave pay only
  2. 2.Each party is to bear its own costs
  3. 3.The claimant shall clear with the respondent and his due gratuity shall be processed accordingly
  4. 4.Upon completion of clearance, a Certificate of Service under Section 51 of the Employment Act, 2007 shall be issued

Authorities

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Legislation

  • Employment ActSection 47(5)
  • Employment Act, 2007Section 51
  • Employment ActSection 28

Cases cited (14)

  • Teresa Carlo Omondi v Transparency International – Kenya
    [2017] eKLR
  • Keen Keeners Limited v Kenya Plantation and Agricultural Workers Union
    [2021] eKLR
  • Meshack Kiio Ikulume v Prime Fuels Kenya Limited
    [2013] eKLR
  • Rajab Barasa & 4 others v Kenya Meat Commission
    [2021] eKLR
  • Amatsi Water Services Company Limited v Francis Shire Chachi
    [2018] eKLR
  • Cleopatra Kama Mugyenyi v Aidspan
    [2019] eKLR
  • Fatuma Abdi vs Kenya School of Monetary Studies
    (2017) eKLR
  • Registered Trustees of the Presbyterian Church of East Africa & another v Ruth Gathoni Ngotho-Kariuki
    [2017] eKLR
  • Francis Odero Okello v Kenya Power and Lighting Company
    [2019] eKLR
  • Kenya Revenue Authority & 2 others vs Darasa Investments Limited
    [2018] eKLR
  • Kenya Revenue Authority & Commissioner of Domestic Taxes v Republic (Ex parte) Kenya Nut Company Limited
    Nairobi Civil Appeal No. 58 of 2015
  • Kenya Revenue Authority v Export Trading Company Limited
    Petition 20 of 2020
  • Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others
    SC Petitions No. 14, 14A, 14B and 14C of 2014; [2014] eKLR
  • Transparency International Kenya v Teresa Carlo Omondi
    Civil Appeal No. 18 of 2018, [2023] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment claim)

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, "Muhammad v Technical University of Mombasa (Cause E075 of 2023) [2024] KEELRC 912 (KLR)", Case Analysis (2024). Cause No E075 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/912/eng@2024-04-18

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