Walker Industries Kenya Limited v Sammy James Wambua

GROUNDS OF THE APPEAL 2. The Honourable Magistrate erred in law and in fact in holding that the periodic renewals of the Respondent’s fixed term contracts created a legitimate expectation of renewal. 3. The Honourable Magistrate erred in law and in fact in holding that the Appellant owed the Respondent notice of termination of his fixed term contract of employment. 4. The Honourable Magistrate erred in law and in fact in holding that the Respondent’s employment was unfairly, wrongfully and illegally terminated. 5. The Honourable Magistrate erred in law and in fact in awarding the Respondent compensation for unfair termination when the Respondent was employed for a fixed term only and whose term expired via effluxion of time. 6. The Honourable Magistrate erred in law and in fact in assessing damages and notice pay at the rate of a monthly pay of Kshs. 26,556, yet the J U D G M E N T I N M K O S E L R C A N O . E 0 2 1 O F 2 0 2 6 P a g e 2 | 28

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Respondent was earning a basic salary of Kshs. 14,592.05 and a House Allowance of Kshs. 2,188.80. 7. The Honourable Magistrate erred in law and in fact in awarding the Respondent costs of the suit. BACKGROUND TO THE APPEAL 8. The Respondent was a former employee of the Respondent. He filed a suit against the Appellant vide a memorandum of claim dated 24 th January 2024 seeking the following orders: a. The Respondent pay the Claimant one month’s salary in lieu of notice totalling Kshs. 26,556/-. b. The Respondent pay the Claimant Kshs. 318, 672/- as damages for breach of contract of employment and unfair termination. c. Costs of this suit be payable by the Respondent. d. Interest at bank rates on all the above. e. Such other reliefs as this Honourable Court may deem fit and proper. (pages 8-9 of Appellant’s RoA dated 28th July 2026). 14. The Respondent filed his list of witnesses dated 24th January 2024, witness statement filed on 26th January 2024, and list of documents dated 24th January 2024 together with the bundle of documents attached (pages 11-22 of RoA). J U D G M E N T I N M K O S E L R C A N O . E 0 2 1 O F 2 0 2 6 P a g e 3 | 28

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15. The claim was opposed by the Appellant who entered appearance and filed a statement of response dated 3rd March 2025 (pages 28-30 of ROA). They also filed a list of witnesses dated 3 rd March 2025; witness statement of BONFACE DOLA dated 5th March 2025; and list and bundle of documents dated 3rd March 2025 (pages 31-205 of ROA). 16. The Claimant/Respondent’s case was heard on 26th August 2025, with the Claimant testifying. He adopted his filed witness statement as his evidence in chief, and produced his documents as exhibits. He was crossexamined by counsel for the Appellant Mr. Ondogo (pages 222-224 of ROA). 17. The Appellant/Respondent’s case was heard on the same day, with the Respondent’s witness, one BONFACE DOLA testifying. He adopted his filed witness statement and produced the Respondent’s documents as exhibits. He was cross-examined by counsel for the Appellant Ms. Naswa (pages 224-225 of ROA). 18. The Court entered Judgment on 4 th May 2026 allowing the Respondent’s case to the tune of Kshs. 345,228/- comprising of one month’s pay in lieu of notice and 12 months’ salary as compensation for unfair termination, J U D G M E N T I N M K O S E L R C A N O . E 0 2 1 O F 2 0 2 6 P a g e 4 | 28

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plus costs of the suit and interest at Court rates (judgment at pages 229233 of ROA). DETERMINATION 19. The appeal was canvassed by way of written submissions. Both parties complied. Issues for determination 20. In their subm following issues for determination: i. Does renewal of fixed term contract create a legitimate expectation of constant renewal. ii. Does the appellant owe the respondent notice of termination of a fixed term contract. iii. Was the respondent wrongfully terminated from employment. iv. Did the magistrate err in assessing damages at Kshs. 26,556 where the respondent was earning a monthly salary of Kshs. 16,780.85 v. Is the respondent entitled to compensation. vi. Costs. 21. submissions also dated 30th July 2026: J U D G M E N T I N M K O S E L R C A N O . E 0 2 1 O F 2 0 2 6 P a g e 5 | 28 On his part,

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i. Whether a legitimate expectation of renewal of contract was established by the periodic renewals of the Respondents contracts by the Appellant. ii. Whether notice of termination ought to have been issued to the Respondent. iii. Whether termination by the Appellant was unfair. 22. Upon perusa parties, the court found that the issues placed before it for determination in the appeal were as follows- i. Whether a legitimate expectation of renewal of contract was established by the periodic renewals of the Respondent's contracts by the Appellant. ii. Did the magistrate err in assessing damages at Kshs. 26,556 where the Respondent was earning a monthly salary of Kshs. 16,780.85 iii. Whether notice of termination ought to have been issued to the Respondent. iv. Whether the termination was fair v. Whether the Respondent was entitled to the relief granted? 23. Boat Co. [1968] EA 123 that:- J U D G M E N T I N M K O S E L R C A N O . E 0 2 1 O F 2 0 2 6 P a g e 6 | 28 This being a

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“The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal from a trial by the High Court is by way of a retrial and the principles upon which the Court of Appeal acts are that the court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular the court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.” Whether a legitimate expectation of renewal of contract was established by the periodic renewals of the Respondent's contracts by the Appellant. 24. The ground o ‘The Honourable Magistrate erred in law and in fact in holding that the periodic renewals of the Respondent’s fixed term contracts created a legitimate expectation of renewal.’ Appellant’s submissions J U D G M E N T I N M K O S E L R C A N O . E 0 2 1 O F 2 0 2 6 P a g e 7 | 28

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25. The appellan impugned judgment at paragraph 6, wrongfully held that: “I take the view that given the period the claimant has worked for the respondent, he genuinely legitimately expected that the contract would be renewed and even so, the employer owed him a notice.” 26. The appella law in holding that the Respondent had and/or has a legitimate expectation for renewal of his fixed term contract. That a fixed term contract does not carry any rights or obligations past its term (as captured in the contract), unless the parties mutually agree to extend the term of the contract or enter into a new fixed term contract. The contract at page 39 clause 3 clearly provided that the contract shall commence on 20th February 2023 and terminate on the 31st August 2023. The contract further provided that the contract shall STAND TERMINATED on 31st August 2023, unless otherwise advised. The Appellant had made it clear to the Respondent that unless advised otherwise, the contract would stand terminated on the stated date being 31st August 2023. Therefore, the Respondent cannot now state that he had a legitimate expectation of renewal where the Appellant had made it clear that the contract shall stand terminated unless they advise otherwise. The Respondent did not demonstrate or provide any evidence to show that he had been advised otherwise or that he received any J U D G M E N T I N M K O S E L R C A N O . E 0 2 1 O F 2 0 2 6 P a g e 8 | 28

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form of advice from the Appellant that made him believe that the fixed term contract will be renewed or extended. 16. The Court of Appeal, in a judgment delivered on the 17th February 2023, in Civil Appeal 81 of 2018, Transparency International Kenya vs Teresa Carlo Omondi held at paragraph 24 held that: “…Indeed, the doctrine of legitimate expectation does not arise in the renewal of a fixed term contract and its non-renewal cannot constitute unfair termination or dismissal. Having noted that the respondent was in employment under a fixed-term contract and that the contract came to an end at the appointed time, we are of the view that any relief sought by the respondent on the basis of her assertion that her employment was unfairly terminated was automatically not available to her. 27. Registered Trustees of the Presbyterian Church of East Africa & Another vs Ruth Gathoni Ngotho (2017) eKLR where the Court pronounced itself, thus: ‘ 29. Bearing the foregoing in mind, we note that fixed term contract carries no rights, obligations, or expectations beyond the date of expiry. Accordingly, any claim based after the expiry of the respondent’s contract ought not to have been maintained. This is in relation to the salary of the months 5th April up to May 2010. Similarly, since the J U D G M E N T I N M K O S E L R C A N O . E 0 2 1 O F 2 0 2 6 P a g e 9 | 28 The appella

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respondent’s contract came to an end by effluxion of time any claim for wrongful termination could not be maintained.’ 28. The appellan Catherine Wambui Karuno (2018) eKLR at paragraph 19 of their judgment held that:- “…Once a fixed term contract is at an end, the employer has no obligation to justify termination on other grounds beyond the lapse of the fixed period. This much was appreciated by this Court in Oshwal Academy (Nairobi) & another vs Indu Vishwanath (2015) eKLR which quoted with approval Rika J.’s sentiment in Bernard Wanjohi Muriuki vs Kirinyaga Water and Sanitation Company Limited & another (2012) eKLR: - ‘In the view of the Court, there is no obligation on the part of an employer to give reasons to an employee why a fixed term contract of employment should not be renewed. To require an employer to give reasons why the contract should not be renewed, is the same thing as demanding from an employer to give reasons why, a potential employee should not be employed. The only reason that should be given is that the term has come to an end, and no more. …Reasons beyond effluxion of time are not necessary in termination of fixed term contracts, unless there is a clause in the contract, calling for additional justification for the termination.” J U D G M E N T I N M K O S E L R C A N O . E 0 2 1 O F 2 0 2 6 P a g e 10 | 28

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29. The Court of “It is clear from the evidence on record that the respondent’s employment was governed by fixed term contracts. As aptly observed by Lord Denning MR in British Broadcasting Corporation vs Ioannou (1975) 2 All ER 999 such a contract binds parties for the term stated in the agreement. In our view, the duration of the third contract was expressly stipulated therein, that is, for a period of four months running from 1st March 2014 up to 30th June 2014. To us the fact that there were earlier expressions by the appellant to extend the contract for a further period of at least two years did not give rise to a legitimate expectation that the contract would be extended for such duration as suggested by the Respondent. This is because as this Court expressed in Registered Trustees of the Presbyterian Church of East Africa & another vs Ruth Gathoni Ngotho – Kariuki (2017) eKLR fixed term contracts carry no rights, obligations, or expectations beyond the date of expiry.” 30. The appellan Francis Tonui vs Heifer International Kenya (2017) eKLR consistent with the Court of Appeal decisions. The respondent’s submissions 31. from an express promise given or from the existence of a regular J U D G M E N T I N M K O S E L R C A N O . E 0 2 1 O F 2 0 2 6 P a g e 11 | 28 The respond

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practise which the claimant can reasonably expect "Lord Diplock in Oreilly -vsMackman (1983) 2AC 237 7. Your Ladyship the Appellant through their witness Bonface Dola in the trial court admitted that the respondent was engaged as their employee from the year 2017-2023 for a cumulative period of 6 years. It was further not in contention that the Appellant issued six months' contracts during the period of engagement with the respondent that were continually renewed for the six year period of employment. It was the Respondent's testimony that despite signing his last contract in August 2021 the Appellant continued engaging him where in the course of his employment he was able to rise to the position of team leader. The payslips produced by the respondent confirmed that indeed he was engaged on a monthly basis by the appellant 8. It was the Respondent's uncontroverted evidence that on 1 September 2023 he was dismissed by word of mouth and arbitrarily told by the Human Resource Manager to vacate the employer's premises on the basis that his contract had come to an end.it is our submission that by the Appellant's admission to issuing periodic contracts of 6 months, each for over 6 years of employment, and in the course of his engagement giving him leadership position as team leader it created a legitimate expectation of renewal of contract for which a reason and notice of termination had to be given without which the termination ought to be deemed unfair. J U D G M E N T I N M K O S E L R C A N O . E 0 2 1 O F 2 0 2 6 P a g e 12 | 28

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32. The respond Limited -Vs- Kenya Plantation and Agricultural Works Union (2021) eKLR in which the Court of Appeal upheld the decision of the trial court and deemed Section 43 and 45, Employment Act applicable where the grievants thereat were on fixed term contracts that had been continuously renewed fora period of 11 years and were-similar to the Respondent herein- dismissed with no notice the Court of Appeal held that: "the long standing, uninterrupted and consistent practise of renewing or extending the grievants contract would have surely led the grievants to believe that their last contracts would be renewed, more so in the absence of any reasonable notice to the contrary given to them by the appellant." 33. the Respondent; and given long period he served post the contract as well as the uninterrupted and consisted practise of renewal of contracts for the 6 year period that the Respondent was engaged with the Appellant, it is expected that the respondent had a legitimate expectation that there would be a renewal of his contract hence the very reason the Respondent continued to report to work until and including 1 September, 2023 only to be arbitrarily informed to vacate the premises and that his contract had come to an end. J U D G M E N T I N M K O S E L R C A N O . E 0 2 1 O F 2 0 2 6 P a g e 13 | 28 The respond

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Decision of the question of legitimate expectation 34. It was not In contracts from 2017 to 2023. The last contract was for 6 months from 20th February 2023 to 31st August 2023. The respondent contended that on 1st September 2023 he was informed his contrary had expired. On the face value of the contract, the expiry date was 31st August 2023. The respondent hinged his case of unfair termination on legitimate expectation. Among the decisions cited by the parties the latest of the Court of appeal on legitimate expectation is Transparency International Kenya vs Teresa Carlo Omondi (2023) eKLR where the court on Appeal, in appeal against a decision based on legitimate expectation of renewal of contract, held follows- ‘The court is in agreement with these sentiments. We dare say that an automatically renewable fixed-term contract is a contradiction in terms, as it would subject the parties to an indeterminate employment contract. The respondent was under a fixed-term contract with a definite commencement date and termination date. There was no ambiguity created to create an expectation of contract renewal by the appellant’s issuance of a fixed-term contract. The contract terminated automatically when the termination date arrived. Whether a contract with a renewal clause will be extended or not, is an issue that is at the discretion of the J U D G M E N T I N M K O S E L R C A N O . E 0 2 1 O F 2 0 2 6 P a g e 14 | 28

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employer and it cannot create a legal right under the doctrine of legitimate expectation.’ 35. The Court of Appeal (supra) expounded on the doctrine of legitimate expectation in the Omondi case(supra) as follows‘28.On the reliance of the doctrine of legitimate expectation, in the Supreme Court Case, petition No 14 of 2014 Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR, the court held: “Legitimate expectation” is a doctrine well recognized within the realm of administrative law, as is clear from the English case, In re Westminster City Council,[1986] A.C 668 at 692(Lord Bridge):“…the courts have developed a relatively novel doctrine in public law that a duty of consultation may arise from a legitimate expectation of consultation aroused either by a promise or by an established practice of consultation”. An illuminating consideration of the concept of “legitimate expectation” is found in the South African case, South African Veterinary Council v Szymanski 2003(4) S.A 42 (SCA) at [paragraph 28]: the court held as follows: “The law does not protect every expectation but only those which are 'legitimate'. The requirements for legitimacy of the expectation include the following: i. The representation underlying the expectation must be 'clear, unambiguous and devoid of relevant qualification': De Smith, Woolf and Jowell (op cit [Judicial Review of J U D G M E N T I N M K O S E L R C A N O . E 0 2 1 O F 2 0 2 6 P a g e 15 | 28

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Administrative Action 5th ed] at 425 para 8-055). The requirement is a sensible one. It accords with the principle of fairness in public administration, fairness both to the administration and the subject. It protects public officials against the risk that their unwitting ambiguous statements may create legitimate expectations. It is also not unfair to those who choose to rely on such statements. It is always open to them to seek clarification before they do so, failing which they act at their peril. ii.The expectation must be reasonable: Administrator, Transvaal v Traub (supra [1989 (4) SA 731 (A)] at 756I - 757B); De Smith, Woolf and Jowell (supra at 417 para 8-037). iii.The representation must have been induced by the decision- maker: De Smith, Woolf and Jowell (op cit at 422 para 8-050); Attorney- General of Hong Kong v Ng Yuen Shiu [1983] 2 All ER 346 (PC) at 350h - j. iv. The representation must be one which it was competent and lawful for the decision-maker to make without which the reliance cannot be legitimate: Hauptfleisch v Caledon Divisional Council 1963 (4) SA 53 (C) at 59E - G.”This was also referred to with approval in Walele v City of Cape Town and Others; 2008 (6) S.A 129 (C.C.) paragraph 41.The emerging principles may be succinctly set out as follows: a. there must be an express, clear and unambiguous promise given by a public authority; b. the expectation itself must be reasonable; c. the representation must be one which it was competent and lawful for the decision-maker to make; and d. there cannot be a legitimate expectation against clear provisions of the law or the Constitution. De Smith, Woolf & J U D G M E N T I N M K O S E L R C A N O . E 0 2 1 O F 2 0 2 6 P a g e 16 | 28

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Jowell, in “Judicial Review of Administrative Action cited in Republic v Kenya Revenue Authority Ex Parte M- Kopa Kenya Limited thus: “A legitimate expectation arises where a person responsible for taking a decision has induced in someone a reasonable expectation that he will receive or retain a benefit of advantage. It is a basic principle of fairness that legitimate expectations ought not to be thwarted. The protection of legitimate expectations is at the root of the constitutional principle of the rule of law, which requires predictability and certainty in government’s dealings with the public.” 36. The Court of Appeal (Omondi case, supra) held- ‘In the instant appeal, a cursory look at clause 13 of the contract of employment, allows either the appellant or the respondent, to terminate the agreement, by giving three (3) months’ notice in writing or by paying three (3) months’ pay in lieu of such notice. The appellant simply exercised its right as captured in the letter and as such, could not be deemed to have unfairly terminated the contract. It is old hat, that parties are bound by the terms of the contracts they enter into. 30. Concomitantly, the scenario would have been different if there was an indication, by act or omission from the appellant, to indicate renewal was forthcoming to whet the respondent’s appetite, that her contract would be renewed and hence rely on the doctrine of legitimate expectation. In the instant case, there was no promise of any sort that was given to the respondent to justify a claim based on legitimate expectation.’’ J U D G M E N T I N M K O S E L R C A N O . E 0 2 1 O F 2 0 2 6 P a g e 17 | 28

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37. Before the tr he had no evidence that he was stopped from working on 1st September 2023, as claimed. He agreed he was engaged on contractual terms and that he was paid in August. In re-examination, he stated his employment was not to end at all. 38. The trial cou for the respondent , he genuinely and legitimately expected that the contract would be renewed and, even so, the employer owed him notice. The trial court further held that the submission by the respondent that the claimant was aware that the last contract would not be renewed had no foundation. 39. It is trite that parties are bound by the terms of their contract. In Kenneth Karisa Kasemo vs. Kenya Bureau of Standards [2013] eKLR the court held: “We have carefully considered the law and the facts surrounding this case, suffice to say that the law on employment does not normally envisage a situation where an employee is “forced” upon an employer (and vice versa) and case law is rife on this subject and indeed this Court has time without number honoured the contract existing between the parties.” J U D G M E N T I N M K O S E L R C A N O . E 0 2 1 O F 2 0 2 6 P a g e 18 | 28

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40. The subject respondent was aware of the date. On perusal of the contract, I did not find a renewal clause. various contract The respondent had worked from 2017 with renewals. The words of the contract were unambiguous. 41. The court dis that legitimate expectation of renewal was created by past several renewals. Applying the Court of Appeal decision in Omondi(supra), was the past renewals an indication, by act or omission from the appellant, to indicate renewal was forthcoming to whet the respondent’s appetite, that his contract would be renewed and hence rely on the doctrine of legitimate expectation? The court found the contract had clear terms of period of service and had no renewal clause. The respondent signed the contract willingly and was aware of the period of service. The court further asked itself whether the previous numerous renewals of the short-term contracts from 2017 to 2023 whetted the respondent’s appetite to found legitimate expectation of continued renewals? The trial court relied on the Court of Appeal decision in Keen Kleeners Limited v Kenya Plantation and Agricultural workers’ Union [2021] KECA 352 (KLR) to wit- J U D G M E N T I N M K O S E L R C A N O . E 0 2 1 O F 2 0 2 6 P a g e 19 | 28

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‘In the present case, the trial Court was convinced that the grievants genuinely and legitimately expected renewal on the basis that the parties had a relationship running from 2007 whereby the grievants contracts had been renewed without fail… The trial Court had a sound basis for reaching his conclusion that a legitimate expectation for renewal was created. The long standing, uninterrupted and consistent practice of renewing or extending the grievants’ contracts would have surely led the grievants to believe that their last contracts would be renewed, more so in the absence of any reasonable notice to the contrary given to them by the appellant. What follows is the issue of whether the grievants were unfairly terminated contrary to the provisions of Section 43 as read with Section 45 of the Employment Act. Having established the existence of a legitimate expectation of renewal on the part of the grievants, the appellant had to prove the reasons for terminating the employment relationship. The principle reason put forward by the appellant was the contract was subject to availability of work; and that the number of workers required at Lafarge Diani was solely determined by Bamburi Cement. However, the evidence on record relating to the operational requirements of Bamburi Cement at Lafarge Diani, as rightly pointed out by the trial Court, indicated that more, not less employees would be required in the months following July 2011. J U D G M E N T I N M K O S E L R C A N O . E 0 2 1 O F 2 0 2 6 P a g e 20 | 28

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The trial Court rightly questioned why the appellant would refuse to consider renewal when the evidence indicated that additional workers would be required. There is therefore no reason to interfere with the finding of the trial Court that this was a case of unfair termination.’’ 42. I find the facts before the trial court were similar to the facts in the foregoing decision in Keen Kleeners Limited v Kenya Plantation and Agricultural workers’ Union [2021] KECA 352 (KLR), as the appellant issued the respondent with short fixed contracts starting with one of 3 months in 2017, with the last of 6 months ending on 31st August 2023. The issuance of continuous short term contracts from 2017 to 2023 was a sufficient period to create a legitimate expectation of renewal or at least of notice of non-renewal, as held in Keen Kleeners Limited v Kenya Plantation and Agricultural workers’ Union [2021] KECA 352 (KLR), applied by the trial court. The facts are distinguished from the Omondi decision, where the employee had no history of continuous renewals. 43. I find no basis to interfere with the decision of the trial court applying decision V Shah [1968] EA Page 93 De Lestang V.P (As He Then Was) Observed At Page 94: “I think it is well settled that this court will not interfere with the exercise of its discretion by an inferior court unless it is satisfied that its decision is J U D G M E N T I N M K O S E L R C A N O . E 0 2 1 O F 2 0 2 6 P a g e 21 | 28

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clearly wrong, because it has misdirected itself or because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.’’ Did the magistrate err in assessing damages at Kshs. 26,556 where the respondent was earning a monthly salary of Kshs. 16,780.85. 44. The ground o ‘The Honourable Magistrate erred in law and in fact in assessing damages and notice pay at the rate of a monthly pay of Kshs. 26,556, yet the Respondent was earning a basic salary of Kshs. 14,592.05 and a House Allowance of Kshs. 2,188.80.’ 45. The trial cou Kshs. 26,556(page 14 of RoA). The court finds that the payslip was itemised as follows- ‘Basic (Kshs 14,592.00 House Allowance Kshs. 2,188.80 Overtime(@1.5 for 75.3 hours) Kshs. 7,455.55 Bonus Kshs. 1,320 ‘ J U D G M E N T I N M K O S E L R C A N O . E 0 2 1 O F 2 0 2 6 P a g e 22 | 28

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46. It is the deci employee works thus not applicable for purposes of notice pay as the payment is not automatic. This finding is supported by the evidence on record as the payslips before the trial court reflects the overtime and bonus paid varied month to month and in some cases was not paid. The trial court erred in computation of notice pay. The gross salary for the purposes of section 49 of the Employment Act was the basic salary plus the housing allowance, which was constant during the period of employment. That is Kshs 16,780.80 Whether notice of termination ought to have been issued to the Respondent. 47. The ground o ‘The Honourable Magistrate erred in law and in fact in holding that the Appellant owed the Respondent notice of termination of his fixed term contract of employment.’ 48. Having uphe renewal or at least notice before the termination, it follows that the notice of termination was due and is upheld. The notice payment is based on the salary (basic plus housing as held above). Basic (Kshs J U D G M E N T I N M K O S E L R C A N O . E 0 2 1 O F 2 0 2 6 P a g e 23 | 28

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14,592.00 plus house allowance Kshs. 2188.80 total sum Kshs 16,780.80. Notice payment is upheld payable for the sum of Kshs 16,780.80. Whether the termination was fair 49. The ground o ‘The Honourable Magistrate erred in law and in fact in holding that the Respondent’s employment was unfairly, wrongfully and illegally terminated. and The Honourable Magistrate erred in law and in fact in awarding the Respondent compensation for unfair termination when the Respondent was employed for a fixed term only and whose term expired via effluxion of time.’’ 50. It was not in court upheld the holding of the trial court that the that respondent held legitimate expectation of renewal or at the very least notice of nonrenewal. In Keen Kleeners Limited v Kenya Plantation and Agricultural workers’ Union [2021] KECA 352 (KLR) relied on by the trial court, the court of appeal held that the court having held there was legitimate expectation the burden was on the employer to prove valid reason for the termination. In the instant case the appellant relied on the effluxion of time only. The reason for the non-renewal of contract was not given. J U D G M E N T I N M K O S E L R C A N O . E 0 2 1 O F 2 0 2 6 P a g e 24 | 28

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What happened for the appellant to stop the renewals? That reason was not given. The Court of Appeal in Keen Kleeners Limited (supra) held- ‘What follows is the issue of whether the grievants were unfairly terminated contrary to the provisions of Section 43 as read with Section 45 of the Employment Act. Having established the existence of a legitimate expectation of renewal on the part of the grievants, the appellant had to prove the reasons for terminating the employment relationship. The principle reason put forward by the appellant was the contract was subject to availability of work; and that the number of workers required at Lafarge Diani was solely determined by Bamburi Cement. However, the evidence on record relating to the operational requirements of Bamburi Cement at Lafarge Diani, as rightly pointed out by the trial Court, indicated that more, not less employees would be required in the months following July 2011.The trial Court rightly questioned why the appellant would refuse to consider renewal when the evidence indicated that additional workers would be required. There is therefore no reason to interfere with the finding of the trial Court that this was a case of unfair termination.’’ 51. I uphold the above decision relied on by the trial court to uphold the unfair termination. In the said decision the award for compensation was 4 months salary and 1 month notice. In the instant case, the trial court J U D G M E N T I N M K O S E L R C A N O . E 0 2 1 O F 2 0 2 6 P a g e 25 | 28

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granted the maximum compensation and failed to justify the award. The employees in Keen Kleeners Limited (supra) had worked from 2007 to 2011 on short term contracts. The respondent in the instant case had worked from 2017 to 2023. The respondent had no history of disciplinary issues and had been promoted over time. The last contract was of 6 years. Taking the foregoing into account consistent with section 49(4) of the Employment Act, I find the maximum award of 12 months gross salary was excessive and reduce the award by 6 months. The court tempers with the decision to award 6 months' gross salary (Basic and housing), thus Kshs 16,780.80 x 6, thus Kshs. 100,684.80. Whether the Respondent was entitled to the relief granted? 52. The court ho compensation which was tempered to apply Basic and housing items of the payslip and compensation reduced to 6 months. Costs follow the event. Disposition 53. The appeal i 54. The Judgmen 2026 in Mavoko CMEL/MCELRC NO. E037 of 2024 is set aside and substituted as follows- J U D G M E N T I N M K O S E L R C A N O . E 0 2 1 O F 2 0 2 6 P a g e 26 | 28

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‘Judgment is entered for the claimant against the respondent as follows- a. Notice payment of Kshs. 16,780.80. b. Compensation for unfair termination equivalent of 6 months gross salary (Basic and housing ) Total sum Kshs. 100,684.80. c. Cost. d. Interest at court rates on all the above. 55. Taking into a application of the law by the trial court, I order each party to bear own costs in the appeal. 56. It is so order DATED, SIGNED, AND DELIVERED VIRTUALLY AT MACHAKOS THIS 18 TH DAY OF SEPTEMBER, 2026. Jemimah Keli, JUDGE. IN THE PRESENCE OF: Court Assistant: Otieno Appellant – Ondego - I seek 30 days of stay Respondent – Akolla -No objection. J U D G M E N T I N M K O S E L R C A N O . E 0 2 1 O F 2 0 2 6 P a g e 27 | 28

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Court Order 30 days' Order of stay of execution is granted Jemimah Keli, JUDGE. 18/09/2026 J U D G M E N T I N M K O S E L R C A N O . E 0 2 1 O F 2 0 2 6 P a g e 28 | 28

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