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ELRCDismissedMilimani ELRC Appeal (from Nairobi MCELRC No. E401 of 2021)

Kendi v Safaricom Sacco Limited (Employment and Labour Relations Appeal E259 of 2023) [2025] KEELRC 2511 (KLR)

Employment and Labour Relations Court
18 September 2025
5,380 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed that a fixed-term job contract ends automatically when it expires, with no guaranteed right to renewal.

What this practically means

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Executive summary

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The appellant, a former contractual employee of Safaricom Sacco Limited, appealed to the Employment and Labour Relations Court against the judgment of Hon. M. Wafula (PM) delivered on 16th November 2023 in Nairobi MCELRC No. E401 of 2021, which had dismissed her claim for unfair labour practices, discrimination, unfair termination, notice pay, service pay and severance, save for ordering issuance of a certificate of service. The appeal was canvassed by way of written submissions. The court framed four issues: (i) whether an objection to the capacity of the respondent's Human Resource & Administration Officer to testify could be raised at any time before judgment; (ii) whether the respondent's guarantee of the super-premium loan of Kshs. 840,000.00 created a legitimate expectation of contract renewal; (iii) whether the alleged unfair labour practices were discriminatory; and (iv) whether the appellant was entitled to the prayers sought. The court held that although a legal objection may be raised at any stage, the capacity objection was a procedural technicality that failed on the merits, guided by Makupa Transit Shade Ltd v Kenya Ports Authority. On legitimate expectation, the court upheld the trial court's finding that the loan was guaranteed by the appellant's colleagues, as she conceded in cross-examination, and held that a fixed-term contract ends automatically on its termination date with no legitimate expectation of renewal. On discrimination, applying Gichuru v Package Insurance Brokers Ltd and Samson Gwer v KEMRI, the appellant failed to lay substantial material to shift the evidential burden to the employer under section 5(7) of the Employment Act. The appeal was found to be without merit and dismissed with costs to the respondent, and the trial court's judgment and decree were upheld.

Questions the Court framed

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

  1. 1.Whether the preliminary objection on the capacity of the Respondent's Human Resource & Administration Officer to testify could be raised at any point before judgment.
  2. 2.Whether the subordinate court erred in failing to consider that the Respondent guaranteed the super-premium loan of Kshs. 840,000.00 to the Claimant, which was a legitimate expectation that her employment contract would be renewed.
  3. 3.Whether the unfair labour practices were discriminatory to the Appellant.
  4. 4.Whether the Appellant was entitled to the prayers sought.

Key legal issues

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01

Whether a preliminary objection on a witness's capacity to testify could be raised at any point before judgment

Holding

Yes, the issue being a legal one it could be raised at any stage, but on the merits the objection failed: it was a procedural technicality and the witness had demonstrated she was an authorised officer.

Reasoning

The court noted no notice of preliminary objection was filed; the issue arose in cross-examination. RW1 stated she was the Human Resources and Administrative Manager duly authorised by the Board. The court, guided by Makupa Transit Shade Ltd v Kenya Ports Authority, held it was sufficient for the witness to state she was authorised, and the appellant adduced no contrary evidence. Unlike commencement of a suit, a defence based on an authorised officer causes no prejudice to the opponent.

p. 5
02

Whether the guarantee of the super-premium loan of Kshs. 840,000.00 created a legitimate expectation of contract renewal

Holding

No. The trial court's finding that the loan was guaranteed by colleagues was anchored on the appellant's own cross-examination, and the expectation of renewal was based on a false narrative.

Reasoning

In cross-examination the appellant herself stated it was her colleagues, not the SACCO, who guaranteed the loan, so the trial court's finding could not be faulted. Applying Transparency International - Kenya v Omondi, a fixed-term contract ends automatically on its termination date and creates no expectation of renewal; extension is at the employer's discretion. The contract expired by passage of time with no legitimate expectation arising.

p. 5
03

Whether the alleged unfair labour practices were discriminatory

Holding

No. The appellant did not lay a prima facie basis for discrimination; she disclosed no names or particulars of comparators and produced no comparator contract for comparison.

Reasoning

Applying Gichuru v Package Insurance Brokers Ltd and Samson Gwer v KEMRI, the claimant bears the overriding obligation to lay substantial material establishing discrimination before the burden shifts to the employer under section 5(7) of the Employment Act. The appellant's pleadings lacked names and numbers of allegedly favoured staff, her own contracts showed different positions from those alleged, and the comparator's contract was never produced. The threshold was not transcended.

p. 11

Legal principles established

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  • A fixed-term contract ends automatically on expiry of its termination date and carries no legitimate expectation of renewal; whether to extend is at the employer's discretion.
  • In discrimination claims, the claimant must first lay substantial material before the court to discharge the initial evidential burden before it shifts to the employer under section 5(7) of the Employment Act.
  • An objection to a witness's capacity to testify for a corporate defendant on grounds of absence of written authority is a procedural technicality, insufficient where the witness demonstrates knowledge of the dispute and states she was duly authorised.

Court orders

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  1. 1.The appeal is dismissed with costs to the respondent.
  2. 2.The Judgment and Decree of the Hon. M. Wafula (PM) delivered on 16th November, 2023 in Milimani MCELRC No. E401 of 2021 is upheld.

The bench

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

majority

Wrote the judgment

On appeal from
Principal Magistrate's Court (Milimani), Employment and Labour Relations
Nairobi MCELRC No. E401 of 2021
Jurisdiction invoked
First appellate jurisdiction under the Employment Act/ELRC Act over appeals from the subordinate court's Employment and Labour Relations jurisdiction (appeal against judgment in MCELRC No. E401 of 2021)

Relief refused

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Setting aside the subordinate court's judgment and substitution with an order allowing the claim dated 10/03/2021

All grounds of appeal failed; the appellant did not discharge the evidential burden on discrimination, and legitimate expectation was founded on a false premise.

p. 11

Costs

The appeal is dismissed with costs to the respondent.

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.

In conclusion, the appeal is held to be without merit and is dismissed with costs to the respondent. The Judgment and Decree of the Hon. M. Wafula (PM) delivered on 16th November, 2023 in Milimani MCELRC No. E401 of 2021 is upheld.
p. 11Disposition - appeal dismissed and trial court judgment upheld
It is so Ordered.
p. 11Final orders
The contract ended automatically when the termination date arrived. Whether a contract with a renewal clause will be extended or not is at the discretion of the employer, and it cannot establish a legal right under the doctrine of legitimate expectation.
p. 6Legitimate expectation in fixed-term contracts
Only with this threshold transcended, would the burden fall to the respondent to prove the contrary.
p. 11Shifting of the evidential burden in discrimination claims
It was therefore sufficient for the deponents to state that “they were duly authorised.” It was then upto the appellants to demonstrate by evidence that they were not so authorised.
Authorisation of corporate witnesses/representatives

Issues in the judgment

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minor

The respondent's witness is referred to inconsistently as 'Tabby Njeri Karagu' and 'Tabby Karanja' within the judgment.

minor

The judgment states the appeal record was dated 13th May 2025, which post-dates the memorandum of appeal of 15th December 2023 but sits oddly with the narrative chronology; no substantive contradiction in holdings.

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, "Kendi v Safaricom Sacco Limited (Employment and Labour Relations Appeal E259 of 2023) [2025] KEELRC 2511 (KLR)", Case Analysis (2025). Milimani ELRC Appeal (from Nairobi MCELRC No. E401 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2511/eng@2025-09-18

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