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ELRCPartially AllowedNot stated in the judgment as provided· [2025] KEELRC 574 (KLR)

Muthiani & 4 others v Salvation Army Kenya East Territory (Employment and Labour Relations Cause E712 of 2022) [2025] KEELRC 574 (KLR)

Employment and Labour Relations Court of Kenya
26 February 2025
6,976 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~28 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that employees who keep working after their contracts expire, on promises of re-engagement, are still entitled to pay.

What this practically means

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Executive summary

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Five former employees of The Salvation Army, the core team of the donor-funded SIMBA Project, sued for salary arrears, notice pay, four years' projected Phase 2 salaries, leave pay, twelve months' compensation for unfair termination and certificates of service. Their eleven-month fixed-term contracts expired on 31st October 2021. The Respondent maintained that the contracts lapsed by effluxion of time, that it only paid November 2021 to January 2022 salaries out of charity, and that the Claimants refused to apply for advertised positions in July 2022. The Claimants maintained they were placed on an unpaid break in January 2022, continued working to secure Phase 2 funding, were listed as project personnel in the MOU of 31st May 2022, and were then bypassed when their positions were advertised. Examining email exchanges between March and July 2022, the court found the Claimants continued working after contractual expiry and were led to believe they would be absorbed into Phase 2, giving rise to a legitimate expectation. The court awarded each Claimant six months' salary arrears for the unpaid break and three months' salary as compensation for the unfairness of being strung along, plus certificates of service. The larger claims - four years' Phase 2 salaries, leave pay, notice pay and twelve months' compensation - were not awarded. Costs of the suit with interest from the date of judgment were awarded to the Claimants.

Key legal issues

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01

Whether employment lapsed by effluxion of time on 31st October 2021

Holding

Although the fixed-term contracts ended on 31st October 2021, the Claimants continued working for the Respondent thereafter, so the engagement did not simply lapse

Reasoning

The court examined email trails between March and July 2022 showing Faith Muthiani being asked for input on the MOU, attending a conference, compiling reports and being introduced to new donors' contacts. The donor's email even anticipated her continued engagement. The court concluded the Claimants were still engaged despite the expiry of the written contracts, and were led to believe they would be absorbed into Phase 2.

p. 13
02

Entitlement to salary arrears for the unpaid break period

Holding

The Claimants were entitled to six months' salary not paid during the unpaid break, quantified per Claimant at their respective monthly salaries multiplied by six

Reasoning

Having found the Claimants were still engaged and worked during the intervening period while the Respondent sought and secured Phase 2 funding, the court held the Respondent must pay the six months' salary withheld during the unpaid break. It then itemised the amounts for each Claimant, corresponding exactly to the arrears pleaded in the Statement of Claim.

p. 13
03

Compensation for the unfairness of leading the Claimants on without engaging them for Phase 2

Holding

Each Claimant was awarded three months' salary as compensation for the unfairness they were subjected to, a substantial downward departure from the twelve months sought

Reasoning

The court accepted that the Claimants were made to work for over six months in the hope of another contract that never materialised, and that it was 'unfortunate' they were never brought on board the new project despite being led on until July 2022 when their positions were advertised. It exercised discretion under the compensatory jurisdiction to award three months' salary to each Claimant rather than the twelve months claimed.

p. 13

Legal principles established

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  • Where an employer permits employees whose fixed-term contracts have expired to continue working and leads them to expect absorption into the next phase of a project, they remain engaged and are entitled to salary for that period
  • Continued engagement and communications indicating an employee is on board for the next phase create a legitimate expectation of continued employment
  • Employees led to work in anticipation of a further contract are entitled to compensation for the unfairness of being strung along and then not engaged

Court orders

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  1. 1.Payment of six months' salary arrears to each Claimant for the unpaid break period: Faith Muthoni Kshs 900,000; Nancy Gathoni Kshs 533,952; Boniface Nzioka Kshs 533,952; Benjamin Nyaga Kshs 533,952; Jonathan Wangui Kshs 202,356
  2. 2.Payment of three months' salary as compensation for unfairness to each Claimant: Kshs 1,350,000; Kshs 800,928; Kshs 800,928; Kshs 800,928; and Kshs 303,534 respectively
  3. 3.The Respondent to issue the Claimants with certificates of service
  4. 4.The Respondent to pay costs of the suit plus interest at court rates with effect from the date of the judgment
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour relations disputes; suit instituted under Rule 9 of the Employment and Labour Relations (Procedure) Rules, 2016

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, "Muthiani & 4 others v Salvation Army Kenya East Territory (Employment and Labour Relations Cause E712 of 2022) [2025] KEELRC 574 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/574/eng@2025-02-26

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