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ELRCDismissedPetition dated 11th December 2023 (ELRC Petition, Nairobi)· [2024] KEELRC 1889 (KLR)

Nandwa v National Communication Secretariat (Employment and Labour Relations Petition E235 of 2023) [2024] KEELRC 1889 (KLR)

Employment and Labour Relations Court
12 July 2024
AMAnna Ngibuini Mwaure
2,860 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that a fixed-term contract that simply expires is not unfair termination, even if renewal was requested and never answered.

What this practically means

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Executive summary

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The petitioner, employed by the respondent as a Clerical Officer in 2005 and risen to Accountant, Head of Finance and Accounting, served on three-year fixed contracts renewed six times, the last expiring on 22nd November 2023. She requested renewal by letter dated 31st July 2023 pursuant to clause 2.11 of the Terms and Conditions of Service, 2002, which required the Communications Secretary to table the request before the Board or its Committee. She received a letter of non-renewal dated 22nd November 2023 from the Ag. Communications Secretary, Mr. Vincent Adul, whom she accused of malice, stemming from a prior petition in which she was awarded KShs 1,627,672 in underpayments and a subsequent notice to show cause over the payment of the decretal sums to herself. She petitioned for declarations that her termination violated Articles 27, 28, 35, 41, 47 and 50 of the Constitution, plus reliefs including renewal. The respondent maintained the non-renewal followed a performance appraisal revealing deficiencies, reviewed by a performance management committee. The court held the contract was a fixed-term one that expired by effluxion of time; there was no promise or legitimate expectation of renewal; the clause 2.11 procedure was mere procedure, not a mandatory legal requirement; and courts cannot rewrite contracts. All prayers (2-7) were declined. The court ordered that the petitioner be issued a certificate of service within 14 days and that each party bear their own costs.

Key legal issues

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01

Whether non-renewal of a fixed-term contract amounted to unfair, unlawful or malicious termination violating Articles 27, 28, 35, 41, 47 and 50

Holding

No - the contract expired by effluxion of time; there was no promise or legitimate expectation of renewal, so no violation occurred

Reasoning

The petitioner served on three-year fixed contracts renewed six times, the last lapsing on 22nd November 2023. She applied for renewal on 31st July 2023 but received no response until the expiry date. The court held the renewal clause was mere procedure, not a mandatory legal requirement, and that expiry of a fixed contract is not unfair termination absent compelling evidence of a legitimate and unquestionable expectation of renewal.

p. 6
02

Whether the employer's failure to table the renewal request before the Board or its Committee breached the Terms and Conditions of Service

Holding

The clause was procedural only; failure to table the request was not a legal breach

Reasoning

The court construed clause 2.11 and held that the requirement that the Communications Secretary table a renewal request before the Board or its Committee is 'a mere procedure' rather than a legal obligation. Its breach therefore does not found a claim for unlawful non-renewal or constitutional violation, though the court noted the respondent's late response was 'not kind'.

p. 5

Legal principles established

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  • A fixed-term contract that expires by effluxion of time is not terminated, and there is no unfair termination unless there are compelling reasons establishing a legitimate expectation of renewal
  • Courts enforce the terms of a contract as written; they cannot rewrite them
  • A contractual proviso requiring an employee's renewal request to be tabled before the board is a mere procedure, not a mandatory legal requirement whose breach renders non-renewal unlawful

Court orders

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  1. 1.All prayers 2, 3, 4, 5, 6 and 7 of the petition dated 11th December 2023 are declined
  2. 2.The petitioner to be given her certificate of service within 14 days if not already given
  3. 3.Each party to meet their respective costs of the petition

Authorities

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Legislation

  • Constitution of KenyaArticle 27
  • Constitution of KenyaArticle 28
  • Constitution of KenyaArticle 35(1)
  • Constitution of KenyaArticle 41
  • Constitution of KenyaArticle 47
  • Constitution of KenyaArticle 50
  • Constitution of KenyaArticle 201(d)
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1
  • Respondent's Terms & Conditions of Service, 2002Clause 2.11

Cases cited (5)

  • Walter Musi Anyange v. Hilton International Limited & Anor.
    Civil Appeal No. 269 of 2003
  • Kenya Revenue Authority v Reuwel Waithaka Gitahi & 2 Others
    Civil Appeal No. 66 A of 2017 {2019} eKLR
  • Apex Steel Limited Dominic Steel v Mulwa Muendo
    [2020] eKLR
  • Johnson Luvila v All Pack Industries
    [2019] eKLR
  • Nelly Awinja Nandwa v National Communication Secretariat
    Petition No. E085 of 2022 [2023] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes alleging violation of constitutional rights (Articles 27, 28, 35, 41, 47 and 50)

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, "Nandwa v National Communication Secretariat (Employment and Labour Relations Petition E235 of 2023) [2024] KEELRC 1889 (KLR)", Case Analysis (2024). Petition dated 11th December 2023 (ELRC Petition, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1889/eng@2024-07-12

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