Nyarigu v Registered Trustees of Nice Place Foundation & another

He raised queries about this and, on clarication that the communication had been sent in error, maintained that he had no relationship with Auzano and could not renew a contract with a stranger to the employment relationship. 5. The claimant avers that on 5th August, 2021, one, Muvirimi Kupara, describing himself as the Respondents’ Lead Foundation Consultant, informed him by email that the Respondents’ board had unanimously resolved to terminate his engagement on account of his refusal to accept a onemonth contract extension and that this was followed, on 6th August, 2021 by a letter terminating his contract on seven days’ notice pursuant to clause 4.1.1 of the contract, for reasons described only as “the demands of the Foundation at this point in time.” 6. The Claimant contends that he was at no point issued with a show-cause notice, aorded a hearing, or given an opportunity to be heard by the board before the decision to terminate his employment was made and communicated, contrary to sections 41 and 45 of the Employment Act, 2007. He further contends that the reasons advanced for his termination were inconsistent and shifting, at various points attributed to his declining to acknowledge the Auzano contract, to “the demands of the Foundation,” and, later in these proceedings, to the asserted automatic lapse of a xed-term contract. This inconsistency betrays the absence of any genuine, valid reason for termination within the meaning of section 43 of the Act. 7. The claimant further avers that he sent a demand letter dated 18th August 2021 alleging unfair and malicious termination, to which the Respondents’ then advocates responded on 14th September, 2021 denying liability. He thereafter led this suit, and prays as follows; i. Compensation for unfair Termination EUR 2912 X 12 months’ salary = EUR 34,944 ii. Notice pay (one month’s pay) = EUR 2,912 iii. House Allowance 15/100x2912=436.8x4 months = EUR 1,747.2 8. The Respondents admit that the Claimant was engaged between 1st April, 2021 and 31st July 2021 under the Service Contract for Temporary Sta, to serve as Operations Manager and oversee the set-up of the 2nd Respondent’s rescue centre whose launch was targeted for around October 2021. They contend that, although the written contract did not expressly state a termination date, it was at all times understood and communicated between the parties and conrmed by the Claimant’s own correspondence, that the engagement was for an initial period of four months, renewable by mutual agreement. They rely on the Claimant’s WhatsApp message of 25th July 2021, in which he stated that he did not have a contract with the 2nd Respondent “beyond this month” and that he would not nd a further month’s extension appealing, as conrmation of this shared understanding. 9. The Respondents aver that the parties having failed to agree on terms for an extension beyond 31st July 2021 (the Claimant having declined a one-month extension and indicated a preference for a longer term or permanent position, which the 2nd Respondent was not in a position to oer), the contract lapsed by euxion of time on that date. They contend that the email of 5th August, 2021 and the letter of 6th August, 2021 were issued only to formally notify the Claimant of this lapse and to communicate the tabulation of his nal dues, and did not constitute a dismissal requiring compliance with sections 41 and 45 of the Employment Act, 2007 since no employment relationship subsisted at the time. They plead, in the alternative, that even if the letter of 6th August, 2021 is treated as a notice of termination, it was issued in substantial compliance with clause 4.1.1 of the contract. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2344/eng@2026-07-29 2

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10. The Respondents deny that the termination, if any, was actuated by malice, and rely on the fact that the Claimant subsequently entered into a separate Agreement for Consultancy Services with the 2nd Respondent for the period 3rd January, 2022 to 3rd April, 2022 which they contend is inconsistent with a claim of victimisation or punitive dismissal. On house allowance, they contend that the Claimant never raised any query or demand for clarication of the composition of his salary during the subsistence of his employment, and that, applying the burden of proof articulated in Doris Wanjiku Ngugi & 16 Others v Safaricom PLC [2025] KEELRC 1521 (KLR), the basic salary should be taken to have included a house allowance component in the absence of any such demand. They pray that the suit be dismissed in its entirety with costs. 11. The issues for determination therefore are; 1. Whether the Claimant’s engagement was a xed-term contract that lapsed by euxion of time on 31st July, 2021 or whether its termination required compliance with sections 41, 43 and 45 of the Employment Act, 2007. 2. Whether the termination of the Claimant’s employment was wrongful, unfair and unlawful. 3. Whether the Claimant is entitled to the reliefs sought. 4. Who bears the costs of this claim. 12. The 1st issue for determination is whether the Claimant’s engagement was a xed-term contract that lapsed by euxion of time or whether the separation was a termination. This court has carefully considered the Service Contract for Temporary Sta produced by both parties. Clause 3.1, under the heading “Period of Employment,” states only that “despite the signing date, this agreement will come into eect on 1st of April 2021.” No corresponding provision xes an end date, a duration, or a mechanism by which the contract would lapse of its own accord. Clause 4, headed “Termination of Contract,” speaks throughout in the language of active termination, by notice under clause 4.1.1, or by the Company “on any grounds deemed reasonable” under clause 4.1.2, and clause 16.3 provides that no extension or renewal “will be in force or come into eect unless approved” in writing by a named ocer of the Company. These are not the hallmarks of a contract drafted to expire automatically on an ascertainable date, they are the hallmarks of a contract that continues until one party brings it to an end. 13. The Respondents nonetheless urge, citing a substantial body of authorities including Doris Wanjiku Ngugi v Safaricom Ltd[2012] eKLR, Mombasa Apparels (EPZ) Limited v Tailors and Textiles Workers Union[2016] eKLR, Bernard Wanjohi Muriuki v Kirinyaga Water and Sanitation Company Limited & Another[2012] eKLR, National Water Conservation and Pipeline Corporation v Jayne Kanini Mwanza[2014] eKLR, Registered Trustees of the Presbyterian Church of East Africa & Another v Ruth Gathoni Ngotho Kariuki[2017] eKLR, Halar Industries Limited v Muia[2024], and Transparency International Kenya v Teresa Carlo OmondiCivil Appeal No. 18 of 2018 for the unimpeachable general proposition that a genuine xed-term contract lapses on expiry without need for notice or justication and that non-renewal is not, of itself, unfair termination. I accept that statement of the law without reservation. The Respondents further submit, relying on Everret Aviation Ltd v Kenya Revenue Authority[2013] eKLR, Alfred Nyungu Kimungui v Bomas of Kenya [2013] eKLR, Kenya Airways Ltd v Satwant Singh Flora[2013] eKLR and kindred authorities, that the true duration of a contract of service may be gathered not merely from its written text but from the conduct and correspondence of the parties, and they point to the Claimant’s WhatsApp message of 25th July, 2021, in which he stated that he did not have a contract with the 2nd Respondent “beyond this month”, as proof of a shared understanding that the engagement was for a four-month term. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2344/eng@2026-07-29 3

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14. I accept that the Claimant’s message of 25th July, 2021 shows that he, too, anticipated his engagement might come to an end around that time. That, however, is not the end of the inquiry, for the question is not merely what the parties anticipated on 25th July 2021, but what the Respondents themselves actually did thereafter. Had the Respondents genuinely treated the contract as one that would lapse of its own accord, nothing further was required of them on or after 31st July, 2021 beyond settling the Claimant’s terminal dues. That, however, is not what happened. Instead, the Claimant continued his engagement into August, 2021 the Respondents convened what their own consultant described as a board meeting at which “the board has come to a unanimous agreement to terminate our current contract with you,” and that decision was communicated on 6th August, 2021 by a letter which is, by its own terms, a notice of termination. 15. It is headed “Re: Termination of Temporary Contract,” and expressly invokes “clause 4.1.1 of the aforementioned contract,” and it gives the Claimant “7 days’ notice of termination of contract.” A contract that has already expired by euxion of time does not require seven days’ notice of its termination and only a subsisting contract does. The Respondents’ own conduct at the material time, before any dispute had arisen and before the question had acquired any litigation signicance, is accordingly inconsistent with the euxion-of-time characterisation that rst appears in their advocates’ letter of 14th September, 2021 written only after the Claimant’s demand and which has since been maintained in their pleadings and submissions. 16. On the whole of the evidence, I nd that whatever shared expectation the parties may have had as to an initial period of engagement, the Respondents did not in fact allow the contract to lapse on 31st July, 2021. They kept the Claimant in their engagement beyond that date and brought the relationship to an end by an active, deliberated decision communicated through a notice of termination invoking the contract’s own notice clause. The termination accordingly required compliance with sections 41, 43 and 45 of the Employment Act, and the authorities relied upon by the Respondents on the automatic lapse of xed-term contracts, sound as they are in the abstract, do not avail them on these particular facts. 17. The 2nd issue for determination is whether the termination of the Claimant’s employment was substantively and procedurally fair. Section 43 of the Employment Act, 2007 places the burden on an employer to prove the reason or reasons for termination, failing which the termination is deemed unfair within the meaning of section 45. The reasons communicated to the Claimant for his termination were not constant. The email of 5th August 2021 attributed the decision to the Respondents’ inability to oer the length of contract the Claimant desired and the “undesirability” of a further one-month extension. The letter of 6th August 2021, by contrast, gave no operative reason at all beyond the bare and unilluminating statement that the decision was “based on the demands of the Foundation at this point in time.” It was only thereafter, in the advocates’ letter of 14th September, 2021 and in these proceedings, that the Respondents recharacterised the termination as a lapse requiring no reason whatsoever. A shifting and ultimately self-contradicting account of why an employee’s services were dispensed with does not discharge the burden which section 43 places on an employer.This court is satised and applies the reasoning in Kunde v Kaps Municipal Parking Services Ltd [2013] KEIC 5 KLR and Dorcas Kemunto Wainaina v IPAS [2018] KEELRC 2065 (KLR) that no valid and consistent reason for the termination has been established. 18. On procedure, it is not disputed that the Claimant was not invited to the board meeting at which his termination was resolved upon, was not issued with any show-cause notice, and was given no opportunity to make representations before the decision was made and communicated to him, as required of section 41 of the Act and restated in Postal Corporation of Kenya v K Tanui [2019] eKLR. The Respondents’ own pleaded position (that they were under no obligation to subject the https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2344/eng@2026-07-29 4

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Claimant to any disciplinary or termination procedure because he was, in their view, no longer in their employment) proceeds entirely from the euxion-of-time defence which is rejected by this court above and aords no independent answer to the Claimant’s procedural complaint. I accordingly nd the termination to have been wrongful, unfair and unlawful. 19. The 3rd issue for determination is whether the Claimant is entitled to the reliefs sought. While on this, the court declines to accept the Claimant’s characterisation of the termination as having been driven by malice or designed to punish him. The email of 5th August, 2021 thanks him for his contribution “since the inception of the NPF process,” states that the Respondents “truly wouldn’t have gotten to this point” without him, and expressly looks forward to welcoming him to the ocial opening of the rescue centre in October, 2021. The Claimant’s own reply of 7th August, 2021 is similarly cordial. The correspondence in the record also discloses an exchange in early August, 2021 in which the Claimant made a disparaging remark about Mr Kupara’s nationality, to which Mr Kupara took exception, which is, in my view, evidence of mutual friction in the relationship rather than one-sided victimisation. Further, and tellingly, the parties went on to conclude an entirely separate Agreement for Consultancy Services on 3rd January, 2022 barely ve months after the impugned termination, under which the Claimant was again engaged by the 2nd Respondent for a further three months. This sequence of events sits uneasily with a narrative of malicious or punitive dismissal, even as it does not excuse the substantive and procedural shortcomings identied above. This also takes into account that the Claimant’s service was short (four months) and that the 2nd Respondent is, on the uncontroverted evidence, a charitable organisation dependent on donor funding, a matter properly weighed under section 49(2) of the Act in xing the level of compensation, though it does not absolve the Respondents of liability. 20. Having found the termination unfair, the Claimant is entitled to compensation under section 49(1)(c) of the Employment Act, 2007 capped at the equivalent of twelve months’ salary. Weighing the genuine procedural and substantive lapses against the short period of service, the absence of malice properly so called, the cordial character of the parting, and the parties’ subsequent re-engagement, I consider an award equivalent to four months’ gross salary to be just in the circumstances. An award of EUR 11,648.00 becomes due and tenable. 21. On notice, clause 4.1.1 of the contract purports to apply notice periods under the South African Basic Conditions of Employment Act, No. 75 of 1997, which has no application to a contract of service performed in Kenya and cannot operate to displace the minimum notice entitlement prescribed by section 35 of the Employment Act, 2007 for an employee paid on a monthly basis. The seven days’ notice in fact given falls short of that statutory minimum. The Claimant is entitled to one month’s pay in lieu of notice, being EUR 2,912.00 and I so award. 22. On house allowance, section 31(1) of the Employment Act, 2007 obliges an employer to provide housing or pay a sucient sum in lieu, and the exception in section 31(2)(a) applies only where the contract of service contains an express provision consolidating a housing element into the basic wage. This court has examined the Service Contract for Temporary Sta in its entirety and nd no such provision; clause 5.1 speaks only of “a monthly cost of the equivalent of EUR 2912,” with no reference to consolidation of any allowance. In these circumstances, and following the authorities ofGrain Pro Kenya Ltd v Andrew Waithaka Kiragu (2019) eKLR and Sheila Wikashei Wikama & Another v Super Broom Services Limited[2022] eKLR. Again, this court does not consider the burden-shifting analysis in Doris Wanjiku Ngugi & 16 Others v Safaricom PLC[2025] KEELRC 1521 (KLR), which concerned a salary already broken into components, to assist the Respondents where, as here, no breakdown of any kind appears on the face of the contract. The Claimant is entitled to house allowance https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2344/eng@2026-07-29 5

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computed at fteen per cent of his basic salary for his four months of service, being EUR 1,747.20, as pleaded and uncontroverted on quantum. 23. It is notable that the Respondents paid the Claimant the sum of Kshs. 190,541.27 on 27th August, 2021 by their own account in partial settlement of his terminal dues. That sum shall be set o against the awards made below. 24. I am therefore inclined to allow the claim and order relief as follows; i. Four (4) months salary as compensation for unlawful termination of employment …………………………………………………..EUR 11,648.00 ii. One (1) month’s salary lieu of notice…………………………..EUR 2,912.00 iii. Four (4) months unpaid house allowance………………………EUR 1,747.20 Total of award………………………………………………EUR 16,307.20 iv. The sum of Kshs. 190,541.27 paid to the Claimant on 27th August 2021 shall be set o and credited against the award, converted to Euro at the Central Bank of Kenya buying rate prevailing on the date of payment. v. The amounts in order (iv) above shall be computed at the rate of exchange prevailing on the date of payment. vi. The costs of this cause shall be borne by the Respondents. DELIVERED, DATED AND SIGNED THIS 29TH DAY OF JULY 2026. D. K. NJAGI MARETE JUDGE Appearances: 1. Mr. Ondigi instructed by Nchogu, Omwanza & Nyasimi Advocates for the Claimant. 2. Mr. Nderitu instructed by Jackson Awele & Company Advocates LLP for the Respondent. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2344/eng@2026-07-29 6

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