Amudavi v Biovision Africa Trust (BvAT) (Cause E152 of 2026) [2026] KEELRC 2100 (KLR) (21 July 2026) (Ruling)

 **REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT** **NAIROBI** (ON Makau J on 21st July 2026) **CAUSE NO. E152 OF 2026** **DAVID AMUDAVI ………………………………………….CLAIMANT** **VERSUS** **BIOVISION AFRICA TRUST (BvAT)…………………RESPONDENT** **RULING** **Introduction** 1. This ruling relates to the Claimant’s Notice of Motion dated 13th February 2026, brought under section 1A,1B and 3A of the Civil Procedure Act, section 12(3) of the Employment and Labour Relation Act, section 41 and 45 of the Employment Act, section 4 of the Fair Administrative Action Act and Article 41,47 and 50(1) of the Constitution of Kenya. Applicant seeks the following orders: - 2. ***That Pending the hearing and determination of this suit, this Honourable Court be pleased to grant a temporary order staying the implementation, execution and/or enforcement of the Respondent's letters dated 26th January 2026, 7th February 2026 and 12th February 2026 or any other letter, notice, or communication that purports to reduce, curtail, or limit the Claimant's term of office in the Biovision Africa Trust.*** 3. ***That Pending the hearing and determination of this suit, this Honourable Court be pleased to issue a temporary injunction restraining the Respondent, whether by itself, its trustees, agents, servants or any person acting under its authority, from: removing, evicting, locking out or excluding the Claimant from the office of Executive Director; treating the Claimant as having ceased to be the Executive Director; implementing or operationalising any alternative leadership or interim governance arrangements in respect of the position held by the Claimant.*** 4. ***That pending the hearing and determination of this suit, the Respondent be restrained from withholding, suspending or interfering with the Applicant's salary benefits, allowances, privileges or contractual entitlements attached to the office of the Executive Director.*** 5. ***That any other order that the Honourable court will deem fit to grant.*** 6. ***That the costs of this Application be provided for.*** 7. The Motion is supported by an Affidavit sworn by the Claimant, on 13th February 2026 and it opposed by the Respondent through a Replying Affidavit sworn on 24th February 2026 by its Chairperson of the Board of Trustees of the Respondent, one Anna Akinyi Onyango. The Respondent also filed a Notice of Preliminary Objection and Grounds of Opposition dated 23rd February 2026. 8. When the motion came up for inter-parties hearing on 25th February 2026, the parties agreed to dispose of the same by written submissions. On the same day the court declined to grant the interim orders sought but restrained the Respondent from substantively filling the position held by the Claimant. 9. The Claimant filed his submissions on 13th April 2026, while the Respondent filed on 17th March 2026. **Facts** 1. The Claimant was employed by the Respondent as its Executive Director for a period of over fifteen (15) years under successive fixed-term contracts of three (3) years each, the last one expiring on 31st December 2025. He expected another new contract of three-year commencing on 1st January 2026. 2. On 14th January 2026 at 7:53 p.m., the Chairperson of the Respondent, Ms. Anna Akinyi Onyango sent an email to the Claimant inviting him to a Consultative Meeting on 15th January 2026 at 2:00 p.m. The meeting took place as scheduled and was attended by the Respondent's Chairperson, Ms. Anna Akinyi Onyango; Professor Christian Wilhelm Borgemeister (a trustee with expired term limits); Mr. Andreas Schriber (former Trustee and Chairperson of the Respondent Board); and the Claimant. 3. During this meeting, the Chairperson briefed the Claimant that the Board had met the previous day and discussed governance issues, particularly staff contracts including the Claimant's. Professor Christian Borgemeister then alleged that the Claimant was engaged in an improper romantic relationship with a member of staff, but the Claimant categorically denied the allegations and requested evidence. 4. No proof was produced but Professor Borgemeister stated that a decision had already been made to limit the Claimant's contract to a short-term extension for two (2) months. However, Dr. Barbara Frei Haller, who joined the meeting later, corrected the period to six (6) months and if necessary twelve (12) months. 5. On 26th January 2026, the Respondent issued the Claimant with a letter purporting to renew his employment contract for a period of six (6) months only, stating that the extension was intended to enable the Claimant to complete work in progress, manage the transition of leadership to a successor, and facilitate a smooth and honourable exit. 6. On 2nd February 2026, the Claimant responded in writing, rejecting the six-month proposal and challenging the legality of the decisions of 15th January 2026. On 7th February 2026, the Respondent suspended the Claimant's official travel and external representation on behalf of BvAT, preventing him from attending planned international engagements, including the Biofach International Organic Trade Fair in Germany scheduled for 10th to 13th February 2026. 7. On 12th February 2026, the Respondent directed the Claimant to vacate office with immediate effect, cease holding himself out as the Executive Director, surrender all Trust property and desist from accessing the Trust's offices, systems, staff and official communication channels. The Claimant was aggrieved and on 13th February 2026, brought this suit concomitantly with the instant motion. 8. The Claimant contends that he served the respondent for 15 years with dignity but he was being removed from office for unsubstantiated allegations and without being accorded a fair opportunity to defend himself or evaluative process. He further contends that the decision made against him was unlawful and invalid for want of quorum. He contends that the Respondent’s constitution provides for minimum of three trustees and maximum of five, and that for a decision to be valid, at least three board members including the chairperson must be involved. He contends that as at the time of the impugned decision, only the chairperson was validly in office while the tenure of officer for the others had lapsed. 9. The Respondent averred that the court lacks jurisdiction to order reinstatement or preserve the status quo where there is no existing contract; that the contract lapsed automatically by effluxion of time and as such the interlocutory orders sought are untenable; that the doctrine of legitimate expectation does not apply to renewal of fixed term contract; and that the orders sought contravene the principle of freedom of contract and the express terms of the terms of the contract of employment for 2023-2025. 10. It further averred that the impugned decision were lawful administrative directives for protecting the trusts assets and handover following the lapse of the claimant’s contract. It denied that the meeting held on 15th January 2026 was disciplinary hearing and clarified that it was a consultative meeting focused on governance and leadership transition after the lapse of the claimant’s tenure of 15 years. He clarified the six months extension was made in good faith to ensure soft landing. **Analysis** 1. Having considered the Notice of Motion, Affidavits Notice of Preliminary Objection, the Grounds of Opposition and written submissions before the court, the main issues for determination are:- 2. Whether the Respondent's Preliminary Objection has merits. 3. Whether the applicant’s motion should be allowed. 4. **the Respondent's Preliminary Objection.** 5. The Respondent’s Notice of Preliminary Objection dated 23rd February 2026 stands on four grounds:- 6. ***The Notice of Motion is fatally defective and bad in law as it seeks interim orders of reinstatement and/or preservation of an employment relationship where the fixed-term contract at issue expired by effluxion of time.*** 7. ***The Application is predicated on an alleged "termination" that never occurred. A fixed-term contract ending on its stated expiry date does not constitute a termination actionable for injunctive or reinstatement relief.*** 8. ***This Honourable Court lacks jurisdiction to order reinstatement or preserve a "status quo" where there is no subsisting contract of service. Reinstatement under section 12(3)(vii) of the ELRC Act and section 49 of the Employment Act presupposes an extant or unlawfully ended contract.*** 9. ***The Certificate of Urgency is an impermissible attempt to interdict the Respondent's Board from exercising fiduciary and contractual discretion on leadership succession, which is non-justiciable absent a continuing employment relationship or statutory breach***. 10. The Claimant, in his written submissions dated 13th April 2026, contended that the Preliminary Objection fails to meet the threshold established in **Mukisa Biscuits Manufacturing Co Ltd v West End Distributors Ltd [1969] EA 696**. The Claimant submitted that all four grounds either assume disputed facts, raise mixed questions of law and fact, or require the exercise of judicial discretion. The Claimant relied on **Ngure v. Kenya Rural Roads Authority [2025] KEELRC 500 (KLR)** in support of the proposition that a preliminary objection must raise pure points of law without factual disputes. 11. The Respondent, in its written submissions submitted that the Preliminary Objection raises a pure point of law, namely, whether this Court can grant injunctive or reinstatement orders where the employment contract has already expired. It contended that a fixed-term contract automatically lapses upon expiry of the agreed term. 12. I have carefully considered the Preliminary Objection and the submissions by both parties. The principles governing preliminary objections were established in **Mukisa Biscuits Manufacturing Co Ltd v. West End Distributors Ltd [1969] EA 696**, where the Court of Appeal for East Africa held that:- **“A preliminary objection consists of a point of law which has been pleaded or which arises by clear implications out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or plea of limitation or submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration… a preliminary objection is in the nature of demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact had to be ascertained or if what is sought is the exercise of judicial discretion.”** 1. The Preliminary Objection mainly relates to the termination of the Claimant’s employment contract by effluxion of time. The Claimant is however not concerned with the expired contract but rather the new contract which commenced after the 2023-2025 contract lapsed on 31st December 2025. 2. He contended that he had a legitimate expectation that the new contract would be for 3years like all the previous contracts and not the six months period offered by the respondent on 15th January 2026. He faulted the Board for making unsubstantiated allegation of misconduct and inappropriate romantic relationship with female staff member. He further faulted the said decision by the respondent for being ultra vires and void *ab initio,* contending that the Board lacked quorum. 3. Having carefully considered the grounds upon which the preliminary objection stands, I find that the same do not constitute pure points of law as enunciated in the **Mukisa Biscuits** above. As noted above, the objection hinges on the expired contract rather than the new contract from 1st January 2026. The relationship between the parties after the expiry of the earlier contract is a matter of fact to be determined by evidence at the trial. That aspect does not fall within the province of preliminary determinations. 4. Besides, this court cannot be said to lack jurisdiction to inquire into the alleged termination of the claimant’s employment by persons acting without mandate and without following due process. This court has the constitutional mandate to determine such allegations between an employer and an employee, as is the case herein. 5. For the above reasons that the preliminary objection raises no pure points of law, and that this court has the necessary jurisdiction to determine the dispute between the parties, I hold that the Preliminary Objection has no merits and is dismissed. 6. **The notice of motion** 7. The motion basically seeks to stay or injunct the implementation of the decision by the Respondent to terminate the Claimant’s employment and evict him from his office as the Executive Director of the Respondent. The applicant averred that he has met the threshold for granting the orders sought. 8. The principles for the grant of an interlocutory injunction were established in **Giella v. Cassman Brown & Co Ltd [1973] EA 358**, where the Court of Appeal for East Africa held that an applicant must demonstrate a prima facie case with a probability of success, show that he will suffer irreparable injury which would not adequately be compensated by an award of damages and if the Court is in doubt on the first two conditions, it may decide the application on a balance of convenience. 9. The Claimant submitted that he has established a strong prima facie case of unfair termination disguised as contract expiry. A prima facie case was defined by the Court of Appeal in **Mrao Ltd v.** **First American Bank of Kenya Ltd & 2 others [2003] eKLR** as follows: - ***“ It is a case which, on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.”*** 1. The Claimant basically alleged that his employment was terminated by the Respondent for unsubstantiated allegations without fair hearing and by a board that lacked quorum and mandate as their term of office had expired except for the chairperson. The Respondent admitted that no disciplinary hearing was held before the Board made the decision contained in the impugned letters and maintained that the Claimant’s contract lapsed by effluxion of time and when he was given a transition contract of six months, he declined. As regards the alleged lack of mandate of the Board, the respondent contended that such irregularity cannot revive a contract that has already lapsed. 2. As already noted, the Claimant’s grievance is not hinged on the expired contract but rather the new contract from 1st January 2026. The Claimant contended that he continued with his employment duties as the Respondent’s executive Director under the watch of the Respondent from 1st to 15th January 2026 when the rain started beating him. He challenged the Board’s mandate to change the terms of service from three years he legitimately expected to six months transitional contract. 3. The Claimant has filed in court a copy of the Respondent’s Governance Charter whose chapter 2.3 limits the term of office for a trustee to three years renewable twice. This means the maximum term of office for a trustee is nine years, subject to attaining the age of 75 years. The question that arises is whether the applicant has laid before the court any evidence to prove that the term of office for all the board members, save for the chairperson, had expired, or they had served the maximum nine years, or had attained the age of 75 years. 4. I have not seen any evidence on record to answer the above question. Appointment letters, minutes of the board or some other documentary evidence could possibly have fortified the applicants case that the Board acted without mandate. 5. As regards the termination of the contract, there is no dispute that the Claimant declined the transition contract that was given after serving 15 days after the expiry of the previous contract on 31st December 2025. The question that arises is whether the claimant’s contract was automatically renewed under the same terms as the expired contract or whether he was entitled to that renewal based on his employment history of past 15 years. 6. The above question, in my view should await for answer during the trial of the suit, since on the basis of the evidence presented by the applicant, I am not satisfied that a prima facie case with high chances of success, has been made out. Consequently this will have first adduce evidence before the court makes a final determination on the employment relationship between them after the expiry of the 2023-2025 contract on 31st December 2025. 7. As regards the issue of irreparable harm if the interim orders are not granted, I see no difficulties in that since if after the trial the court concludes that there was unlawful termination, damages can be awarded under section 49 of the Employment Act and any other relevant law. To that extend, I agree with the respondent that any alleged injury to the Claimant can be adequately compensated by way of damages should he succeed in the main suit. 8. In **Ngurumani Ltd v. Jan Bonde Nielsen & 2 others [2014] eKLR** the Court of Appeal held that:- ***“ the court must be satisfied that the injury the Respondent will suffer, in the event the injunction is not granted, will be irreparable.*** ***In other words, if the damages recoverable in law are an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicants claim may appear at that stage.”*** 1. In view of the foregoing matters and the precedents cited, I find that the Claimant has not demonstrated that he will suffer irreparable harm if the interim orders are not granted. 2. As regards the balance of convenience, the court must balance the prejudices likely to be occasioned to both sides by granting or declining to grant the orders sought. Essentially the orders sought have the effect of reinstating the Claimant to office or ordering specific performance. 3. To begin with the law requires that the court exercises restrain in respect of such requests and only to exercise such discretion on special circumstances only. In this case, the claimant has not sought reinstatement in the main suit and therefore the interlocutory orders sought do not flow from the pleadings. 4. Secondly, granting the said orders without taking evidence at the trial may prejudice the operations of the respondent since on the face value, it seems that the Claimant is the senior most officer (Executive Director) of the Respondent and the relationship between him and the Respondent’s Board has irretrievably broken down following his unauthorized communication to donors (Annexed as "AAO-6"). Besides the Respondent being a donor-funded Trust, reinstating the Claimant against the Board's will, may jeopardize donor relationships and paralyze the Trust's operations. 5. In the circumstances, I find that the balance of convenience tilts in favour of declining the orders sought by the Applicant. Paralyzing the operations of the respondent is more prejudicial than upholding the separation since, as noted above, any injury complained of by the Claimant can be adequately compensated by damages. **Conclusion** 1. I have found that the Respondent's Preliminary Objection dated 23rd February 2026 fails to meet the threshold established in **Mukisa Biscuits Manufacturing Co Ltd v. West End Distributors Ltd [1969] EA 696** and is accordingly dismissed. 2. I have further found that the Claimant has failed to the established the thresholds for granting interlocutory injunction as enunciated in **Giella v. Cassman Brown & Co Ltd [1973] EA 358**. 3. Consequently, I dismiss both the Respondent’s Notice of Preliminary Objection dated 23rd February 2026 and the Claimant's Notice of Motion dated 13th February 2026. Each party to bear own costs. **DATED, SIGNED AND DELIVERED VIRTUALLY IN OPEN COURT AT NAIROBI THIS 21ST DAY OF JULY, 2026.** **ONESMUS MAKAU** **JUDGE** **Appearance:** Adema for Claimant No appearance for Respondent