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ELRCPartially AllowedMCELRC Appeal (from MCELRC No. E244 of 2021)· [2025] KEELRC 578 (KLR)

Mini Bakeries (Nairobi) Limited v Ramadhan (Appeal E074 of 2024) [2025] KEELRC 578 (KLR)

Employment and Labour Relations Court
27 February 2025
3,001 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's ELRC in Kisumu ruled that legitimate expectation rarely applies in private employment disputes, but contractual retirement benefits under a CBA remain enforceable.

What this practically means

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Executive summary

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This is a first appeal to the Employment and Labour Relations Court at Kisumu against the decision of Hon. E. A. Obina dated 31st October 2024 in MCELRC No. E244 of 2021. The respondent, employed as an Oven man from 1st January 2012, was declared redundant in July 2020, recalled, and retired at age 61. The trial magistrate dismissed his claims for Provident Fund contributions and CBA retirement benefits but awarded him Kshs.94,608 (six months' salary) on the basis that allowing him to work past 60 created a legitimate expectation of further service, plus costs and interest. Gakeri J allowed the appeal in part. First, the court held that the issue of service beyond age 60 was unpleaded, did not arise in evidence or submissions, and fell outside the Odd Jobs v Mubia exceptions, so the trial court had no jurisdiction to originate and award on it; the legitimate expectation award was set aside. Second, the court held the doctrine of legitimate expectation originates in public law, and even under the fixed-term contract exception, no express, clear and unambiguous promise was proved. Third, the court found the trial magistrate misapprehended the CBA by conflating pension paid by Jubilee Insurance under the contributory provident scheme (clause 37) with contractual retirement benefits under clause 32(3)(ii), and substituted an award of Kshs.101,885.28 - the amount the appellant itself had computed. The dismissal of the Provident Fund claim was upheld. Each party bears their own costs in both courts.

Key legal issues

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01

Whether the trial court could originate and determine an unpleaded issue of service beyond age 60

Holding

It could not; the issue did not arise in evidence or submissions and did not fall within the Odd Jobs v Mubia exceptions

Reasoning

The court found the issue of service after 60 was common ground to be unpleaded. The witness statement only mentioned retirement at 60, and the respondent's submissions before the trial court did not address it. The Odd Jobs v Mubia exception applies only where the unpleaded issue was in fact left to the court for decision, which was not the case here.

p. 5
02

Applicability of legitimate expectation in private employment contracts

Holding

The doctrine originates in public law; even if arguable in fixed-term contracts, no promise or representation was proved here

Reasoning

The court endorsed Heineken v Maxam that the doctrine is inapplicable to contractual relationships, while noting Transparency International v Omondi suggesting it may apply to fixed-term contracts. Even on that view, the principles require an express, clear and unambiguous promise, which the respondent never adduced. The trial magistrate therefore fashioned a remedy never prayed for.

p. 6
03

Whether the respondent was entitled to retirement benefits under clause 32(3)(ii) of the CBA

Holding

Yes, Kshs.101,885.28 as computed by the appellant itself; the trial court erred in conflating pension paid by Jubilee with contractual service benefits

Reasoning

The court found clause 32(3)(ii) on retirement benefits distinct from clause 37's contributory provident scheme paid through Jubilee Insurance. Clause 38(b) on past service benefits applied only to services up to 31st July 2003, before the respondent's 2012 employment. The appellant itself had computed the amount due as Kshs.101,885.28 in its submissions before the trial court.

p. 4
04

Claim for Provident Fund contributions

Holding

Dismissed; claim unsupported and fully paid by Jubilee Insurance Co. Ltd

Reasoning

The respondent admitted on cross-examination to having received payment from Jubilee Insurance under the provident scheme, and the appellant's witness confirmed payment of pension dues. The trial court's dismissal of this head could not be faulted and was upheld on appeal.

p. 3

Legal principles established

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  • A court ought not as a general rule deal with unpleaded issues in its judgment, unless the issue was left to the court for decision as per Odd Jobs v Mubia
  • The doctrine of legitimate expectation has its origins and justifications in public law and is typically applicable in public law
  • Service pay is not payable where employment terminates under section 35 of the Employment Act, but is payable on retirement where it is a contractual undertaking
  • An appellate court is not bound to accept trial court findings of fact based on no evidence, misapprehension of evidence, or wrong principles

Court orders

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  1. 1.The award of Kshs.94,608.00 as 6 months salary for breach of legitimate expectation is set aside
  2. 2.The respondent is awarded Kshs.101,885.28 as retirement benefits pursuant to clause 32(3)(ii) of the CBA
  3. 3.The finding that the respondent was not entitled to Provident Fund contributions is upheld
  4. 4.Parties shall bear their own costs in the lower court and the appeal
On appeal from
Magistrates' Court (ELRC)
MCELRC No. E244 of 2021
Jurisdiction invoked
First appellate jurisdiction over the subordinate court's decision in an 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, "Mini Bakeries (Nairobi) Limited v Ramadhan (Appeal E074 of 2024) [2025] KEELRC 578 (KLR)", Case Analysis (2025). MCELRC Appeal (from MCELRC No. E244 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/578/eng@2025-02-27

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