https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1351

Mwarania v Cabinet Secretary, National Treasury and Planning & 2 others (Civil Appeal E930 of 2023) [2026] KECA 1351 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KECA 1351 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal E930 of 2023 F Tuiyott, MN Nduma & M Sila, JJA July 10, 2026 Between Jadiah M. Mwarania Appellant and Cabinet Secretary, National Treasury and Planning 1st Respondent The Honourable Attorney General 2nd Respondent Kenya Re-Insurance Corporation Limited 3rd Respondent (Being an appeal from the judgment and orders of the Employment and Labour Relations Court (Nelson Abuodha, J.) dated 18 October 2023, in Nairobi ELRC Petition No. E034 of 2023) Judgment 1.The appellant, Jadia M. Mwarania, was formally appointed as Managing Director/Chief Executive Officer (CEO) of Kenya Re-insurance Corporation Limited (the 3rd respondent) on 3 April 2012 having acted as CEO from 9 April 2010. His appointment was for five (5) years with effect from 12 April 2011. Through a letter dated 12 April 2016, the appellant was appointed for a second term of five years, with effect from 12 April 2016, which term ended on 11 April 2021. As this second term approached expiry, he requested for a renewal for a third term of 5 years. This request was considered by the Human Resource and Nomination’s Committee (HRNC or the Committee) of the 3rd respondent in a meeting held on 3 November 2020. The committee recommended an extension for a further term of 5 years, partly basing its reasons on Circular No. OP/CAB.9/1A dated 27 February 2018 from the Head of Public Service, advising inter alia, that the terms of service for State Corporation Chief Executive Officers are not subject to the general Public Service Policy on mandatory retirement at 60 or 65 years, or limit as to the number of terms served. The recommendation of the Committee came up for discussion before the full Board on 12 November 2020. The Board was inclined to approve the extension for a third term, but hesitated, because of advice of the Secretary, State Corporations Advisory Committee, that the contract should not be extended. The reasons given were that the Circular No. OP/CAB.9/1A had become subject of court proceedings; that the provisions of Mwongozo (The Code of Governance for State Corporations, 2015) on CEO term limits was still in force; and that the CEO’s salary was beyond the limits approved by Government. The matter was therefore deferred. Through a letter dated 18 January 2021, the Board wrote to the Cabinet Secretary, National Treasury and Planning (the 1st respondent) seeking the way forward. 2.The 1st respondent, which office was then held by Hon. (Amb) Ukur K. Yatani, EGH, replied through a letter dated 21 January 2021. In that letter, the Cabinet Secretary (CS) stated that existing Government regulations on contracts of service for Chief Executive Officers for State Corporations was limited to two terms which the appellant had already served. Further, that the Board ought to have ensured that there was in place a succession plan to enable seamless transition at the expiry of the second term. He considered the Board’s justification and granted approval for one year with effect from 11 April 2021 “to allow for the smooth transition.” In that letter, he added that the Board should immediately embark on the process of recruiting a CEO through a competitive process to ensure smooth transition at the end of the extended contract. Guided by this letter, the Board, in a meeting held on 16 February 2021, extended the appellant’s contract for one year effective 11 April 2021. 3.The HRNC, in a meeting held on 13 August 2021, revisited the issue of renewal of the appellant’s term. Yet again, it recommended a renewal for a full term of 5 years and submitted this proposal to the Board for approval. In a special meeting held on 19 August 2021, the Board approved the recommendation and wrote to the 1st respondent, vide its letter of 20 August 2021, seeking his approval and concurrence to have the appellant serve a further 4 years so that he ultimately serves a third term of 5 years. That letter outlined reasons why the Board felt that the appellant’s term should be renewed which included sustained profitability of the Corporation during the tenure of the appellant; the appellant’s long experience; that there were new ventures which needed his guidance; the Covid pandemic; implementation of the 2022-2026 strategic plan; the fact that majority of the Board members were new and without re-insurance background; institutional memory; and the fact that the country was scheduled for an election in 2022 and there was need for leadership stability at the moment of national transition. 4.It would appear that the CS was persuaded by the Board’s persistence and he wrote to the Head of Public Service, a letter dated 30 September 2021, wherein he opined that there was merit in the request by the Board. He approved the Board’s request and sought the concurrence of the Head of Public Service. 5.It is not clear whether there was a direct response to this letter from the Head of Public Service. What was exhibited was a letter dated 20 April 2022, extending the appellant’s contract for one more year - commencing 12 April 2022. There followed a further request vide letter dated 30 May 2022, and a response vide letter dated 9 May 2022 from the 1st respondent, informing the Chair of the Board that the Head of Public Service only approved the one year extension, which was final. In a further letter dated 19 July 2022, the Board was directed to start the process of recruiting a new CEO. 6.Pausing here, it will be appreciated that the country underwent an election in August 2022 and a new regime took over power. There was a change in Government, and Prof. Njuguna Ndung’u was appointed as the new CS National Treasury and Planning. The Board wrote a letter dated 27 October 2022 to the new CS renewing its request for approval of extension of contract of the appellant for 3 years effective 11 April 2023 so that he completes the third five year term. The new CS was not persuaded and he wrote a letter dated 8 November 2022. He referred to the previous correspondences and affirmed the directive that the Board needs to commence a competitive recruitment process of the Managing Director immediately. 7.On 17 November 2022, the Board wrote to the appellant, advising him of the position taken by the CS, and instructed him to take terminal leave. The Board expressed that its request for extension was declined and that it was bound by the guidelines from the State Corporations Advisory Committee (SCAC). A further letter of 24 November 2022 directed the appellant to take terminal leave with effect from 15 December 2022 as the recruitment for a substantive Managing Director was going on. 8.Stung by these developments, the appellant filed a petition dated 22 February 2023 to assert his right to the third term. In that petition, he sued the Cabinet Secretary, National Treasury and Planning as the 1st respondent, the Attorney General as the 2nd respondent, and Kenya Re- Insurance Corporation Limited (3rd respondent herein) as an interested party. In his petition, he referred to the above correspondences, urging that the 3rd respondent resolved to extend his contract as guided by Circular OP/CAB.9/1A but this was curtailed by the 1st respondent. He contends that the decision of the 1st respondent reduced his term, despite approval from the 3rd respondent who was his employer, and that this was done without affording him a fair hearing and violated his constitutional rights. He cited a violation of Article 47 of the Constitution on the right to fair administrative action, and Articles 41 and 50, respectively on the right to fair labour practices and right to fair hearing. He claimed that the respondents approbated and reprobated, by agreeing to extend his term and creating in him a legitimate expectation, but later circumventing that and directing the 3rd respondent to commence the process of appointing another Managing Director. He contended that the 1st respondent usurped the powers of the 3rd respondent; that the 3rd respondent was not subject to approval of the 1st respondent; and that the 1st respondent had no power to countermand and/or overrule the employment related decisions of the 3rd respondent. Consequently, he sought the following prayers (slightly paraphrased for brevity):a.A declaration that the 1st respondent lacks legal mandate to direct the 3rd respondent on matters relating to employment of its staff, the petitioner included.b.A declaration that the 1st respondent’s decisions and directions as constituted in the letters dated 21 January 2021, 9 May 2021, 19 June 2022, and 8 November 2022, are unlawful, null and void.c.A declaration that the Petitioner had a legitimate expectation to continue serving as the 3rd respondent’s Managing Director for the renewed term of five (5) years commencing 11 April 2021 as resolved by the Board of Directors of the 3rd respondent.d.A declaration that the 3rd respondent is prohibited from interfering with the Petitioner’s renewed term of employment as a Managing Director for a five (5) year term with effect from 11 April 2021 premised on the directives and/or decisions of the 1st respondent.e.An order restraining the respondents, from recruiting, or replacing the petitioner in his position as the Managing Director/Chief Executive Officer of the 3rd respondent for a period of five (5) years with effect from 11 April 2021.f.General Damages for the Constitutional violations of the petitioner’s fundamental rights.g.Any other order the court may deem fit to meet the ends of justice.h.Costs of the petition and interest thereon. 9.The 3rd respondent responded to the petition, through a replying affidavit sworn by Hon. Dr. Catherine Kimura, the then Chair of its Board of Directors. She deposed inter alia that the 3rd respondent is a public limited liability company, registered as a State Corporation by virtue of Section 2 (c) of the State Corporations Act, Cap 446, and controlled by the Government of Kenya through the National Treasury which holds a 60% share. She deposed that being a State Corporation, the 3rd respondent was subject to the provisions of the State Corporations Act in matters of engagement and employment of its staff including the position of the CEO. She deposed that the 3rd respondent in adherence to Section 5 (3) of the State Corporations Act, sought approval from the parent Ministry, the National Treasury and Planning, through the 1st respondent, on the engagement and appointment of its staff particularly the reappointment of the appellant, addding that the 3rd respondent was also subject to the provisions of Mwongozo, which Code is issued under Section 7 of the State Corporation Act. She averred that under Mwongozo, the term of office of a CEO is limited to two terms of three years each. 10.She gave a history of the appellant’s engagement with the 3rd respondent as follows. That on 8 April 2010, he was appointed to serve as the Managing Director (MD) in an acting capacity following a Board meeting. He was subsequently appointed as substantive MD with effect from 12 April 2011 for a term of 5 years. That the Board sought approval of the National Treasury regarding his salary and by a letter dated 31 December 2012, the 1st respondent approved his salary. She found it strange that the appellant now claimed that the 1st respondent had no jurisdiction on the appointment of a Managing Director of the 3rd respondent when his own salary was approved by him. She continued that in April 2016, the 3rd respondent renewed the appellant’s term for a further 5 years commencing 12 April 2016 and terminating on 11 April 2021. She acknowledged that the Board’s Human Resource and Nominations Committee recommended to the Board renewal of the contract of the appellant for a third and final term of 5 years. She averred that this was based on the belief that Mwongozo had been suspended by the Circular OP/CAB.9/1A of 27 February 2018 from the Head of Public Service. She stated that the Board received a clarification issued vide a Press Release dated 12 April 2018, on the purport and intention of Circular No. OP/CAB.9/1A. She averred that the HRNC only recommended extension pending consideration by the Board. She deposed that the Board resolved to seek guidance from its parent Ministry and outlined the advice in the letters issued by the 1st respondent. Following the advice, the Board only approved extension for one year commencing 11 April 2021. She asserted that the Board only recommended but never extended the appellant’s contract. She continued that vide a letter dated 9 May 2022, the 1st respondent approved an extension for one year, and this was expressed to be the last extension, with directive to initiate the process of recruiting a new MD no later than 30 June 2022. On 20 April 2022, the 3rd respondent issued a letter extending his term for 1 year which terms were accepted and signed by the appellant. She elaborated that the appellant had already served the full two terms allowed by Mwongozo, and the extension was only done to allow for recruitment of his replacement and for smooth transition. She averred that the appellant’s contract terminated by effluxion of time. She was of the belief that the 1st respondent acted within the mandate of the parent Ministry. She elaborated that the Board’s recommendation for extension was not the same as an extension of the contract of employment, and was cognisant of the 1st respondent’s approval and concurrence as the extra term would have been outside the maximum period allowed under Mwongozo. She averred that the appellant was fully aware of his terms of service, the Mwongozo Code, and the requirement for concurrence of the 1st respondent of the Board’s decision, and thus there could be no legitimate expectation. She reiterated that the appellant was fully aware that he got the last extension, and accepted the terms thereof, by signing the contract of extension in the letter of 20 April 2022. She pointed out that the tenure of the appellant was to lapse on 11 April 2023 and he had properly been requested to proceed on terminal leave so that there would be non-interference with the process of recruitment of a new CEO. She added that the parent Ministry had mandate to set the terms and conditions of service of the staff of the 3rd respondent under Section 5 (3) of the State Corporations Act. 11.The 1st and 2nd respondents responded to the petition through the replying affidavit of Prof. Njuguna Ndung’u, the then CS, National Treasury and Economic Planning. In his response, he inter alia deposed that the 3rd respondent is a State Corporation established under Section 3 of the State Corporations Act and that it was equally governed by the Kenya Reinsurance Corporation Act, No. 7 of 1997. He elaborated that the role of the Ministry in appointing the CEOs/MDs of State Corporations was outlined in Section 5 of the State Corporations Act. He deposed that the Ministry was aware that the appellant had already served two terms in line with existing Government regulations, and he therefore approved an extension for one year only, during which time the Board was required to embark on the process of recruiting a successor. He stated that through letter dated 9 May 2022, the appellant was granted a last extension of one year. He asserted that the HRNC does not have legal mandate under the State Corporations Act to extend the term of contract and further that the Board of the 3rd respondent does not have mandate to appoint or extend the term of the CEO. In response to the claim of the appellant that the 1st respondent approved renewal of the term, he deposed that the communication in the letter of 30 September 2021 (the letter from the CS to the Head of Public Service) was a procedural and confidential consultative communication between the CS and the Head of Public Service, and it does not qualify as a letter of approval for extension of contract. He averred that nothing prohibits a CS from consulting with the Head of Public Service. He added that the appellant produced confidential communication without following the process outlined in the Access to Information Act, 2016 as well as Article 50 (4) of the Constitution, and that the said letter should be ignored and expunged from the proceedings. He added that the source of the letter was not disclosed, nor the manner that it was obtained, and that it was a confidential document that was not accessible to the general public. On the right to be heard, he deposed that the contract of the appellant ended and there was no requirement to give him an explanation or offer a hearing. He continued that the business of the 3rd respondent could as well be steered by other capable professionals. He elaborated that the position of a CEO of a State Corporation is not one that is permanent and pensionable and neither do such persons serve for eternity. He pressed that the 1st respondent acted within its mandate in directing the Board to recruit a successor. On the claim that Mwongozo was superceded by the circular from the Head of Public Service, he explained that Mwongozo was a Presidential Directive under Section 7 of the State Corporations Act which could not be superceded by a circular. He also held the view that commencing the suit through a petition was misplaced and that the same ought to have been commenced through an ordinary claim. 12.The appellant filed a further affidavit to respond to the replying affidavits of the respondents. He contended that the holding of 60% shares by the Government of Kenya, only entitled it to representation through voting in the Annual General Meeting (AGM), as opposed to day-to-day management and operational issues, such as recruitment of employees, including the MD. He averred that there was no requirement that engagement of an MD be subject to approval by the 1st respondent. He elaborated that recruitment of employees is in accordance with the Corporation’s Human Resource instruments, including the Human Resource Policies Manual, inter alia where the MD is recruited by the Board. He averred that in 2012, he was recruited by the Board of Directors without seeking approval from the 1st respondent and so too the first renewal of 2016, and that approval was only sought for a 20% salary increment for the 2016-2021 contract. He averred that the 1st respondent did not give approval, but the Board in exercise of its mandate, effected salary increases over the contract period. He insisted that his contract provided that he was eligible for reappointment after serving the 5 year contractual period subject to good performance and satisfactory personal performance appraisal. Regarding Mwongozo, he stated that it was not superior to the applicable laws and does not override Government Circulars issued subsequent thereto. He added that Mwongozo is a Code of corporate governance that is amendable/adjustable to suit different circumstances. For example, he pointed out that though Mwongozo provides for two terms of 3 years for Board Directors, the Board’s Charter provides for 3 terms, as the terms in Mwongozo are deemed too short. He contended that his term was extended for a third term of five years as the Board adopted the recommendations of the HRNC. According to him, the purported guidance from the 1st respondent was inconsequential as the 1st respondent had no mandate to approve or veto the decision of the Board of Directors. He reiterated that he had a legitimate expectation to serve another five year term up to 11 April 2026 and that any contrary decision would be tantamount to unlawful termination of his contract. Regarding access to the letter of 30 September 2021, he deposed that as the MD he had access to such communication from the 1st respondent, and he saw nothing wrong in using the said letter to support the petition. 13.It is important that we mention that contemporaneously with the petition, the appellant filed an application for conservatory orders to preserve his status as CEO, pending hearing and determination of the petition. Interim orders were issued on 23 February 2023. It would appear that at some point, the interim orders lapsed, and before they could be extended, the 3rd respondent conducted interviews and recruited one Dr. Hillary Maina Wachinga, vide a resolution passed on 28 March 2023, to serve as the MD of the 3rd respondent on a 3 year contract. There followed an application for contempt for this action but which was dismissed in a ruling delivered on 15 May 2023. 14.The substantive matter thereafter proceeded for hearing by way of written submissions, with counsel presenting the positions of their respective clients, more or less in line with what was deposed in the affidavits which we have elaborated above. 15.In his judgment, the learned Judge of the Employment and Labour Relations Court (ELRC) isolated three issues for determination being:a.Whether the appellant was entitled to extension of his contract for a third term of five years and if he had legitimate expectation over the same.b.Whether the appellant was entitled to general damages for breach of constitutional rights; andc.Whether the appellant was entitled to the reliefs sought. 16.On the first issue, the learned Judge found that under the contract between the appellant and the 3r respondent, the 3rd respondent reserved the right to terminate or extend the contract. He held that under Section 5 (3) of the State Corporations Act, the 1st respondent had mandate over the appointed staff, to set their terms and conditions of service, but not their appointment or reappointment. He agreed with the appellant that the Minister could not overrule the Board and that this had support in the decision of Paul Kipsang Kosgei vs National Industrial Training Authority & Another; Cabinet Secretary, Ministry of Labour & Social Services (3rd respondent) (2020) eKLR. 17.He held that the Kenya Reinsurance Corporation Act does not provide for appointment or reappointment of the CEO, but since it was a State Corporation, it was subject to the Mwongozo Code. He held that the Code provides that the tenure of a State Corporation CEO was to be three years renewable once. Regarding the recommendation of the HRNC, he found that this Committee lacked the mandate to recommend the appointment of the appellant, and further, that the two extensions of one year each were done to ensure a smooth transition, given that the appellant had already served two terms as per the Mwongozo Code. He held that Mwongozo is a policy document which, whenever circumstances demand and are justifiable, can be deviated from. In the instant case, he did not find any reason to deviate from the Mwongozo Code since the appellant had served two terms of 5 years and got two extensions of a year each for transition purposes. He found that the appellant voluntarily signed the two extensions without any allegation of duress, misrepresentation or fraud, and is estopped from seeking a five year contract. He added that the appellant was aware that the one year extensions were for transition purposes. He was not persuaded that the appellant held any right to legitimate expectation in the circumstances. 18.On whether the appellant was entitled to general damages for breach of constitutional rights, he was of opinion that at the outset, the appellant needed to prove that there were constitutional issues raised in the petition and illustrate how they were infringed. He held that the prayers in the petition could as well have been handled by the court as an ordinary employment claim. 19.He found no merit in the petition and dismissed it with costs. 20.Aggrieved, the appellant has preferred an appeal to this court. The Memorandum of Appeal has 12 grounds. It will suffice to state that the appellant contends that the ELRC Judge erred in holding that the HRNC lacked the mandate to recommend the appointment of the appellant; that the learned Judge failed to understate the place of Mwongozo with regard to human resource policies; that the misapplication of Mwongozo was not the appellant’s making; that the Judge erred in finding that there was no reason to deviate from Mwongozo because the appellant had served two terms with two extension of a year each; that the Judge erred in holding that there was no allegation of duress, misrepresentation or fraud when signing the extension of his 2nd term; that the Judge erred in finding that the appellant was estopped from seeking a five year term as he voluntarily signed the two extensions; that the Judge erred in finding that there was no legitimate expectation in favour of the appellant; and that the Judge erred in not finding that the appellant deserved general damages for breach of constitutional rights. The appellant wishes to have the judgment set aside and substituted with an order allowing the prayers in the petition. 21.The appeal was urged by way of written submissions buttressed by oral highlights of counsel. We have taken into account the submissions made by Ms. Guserwa, learned counsel for the appellant, Ms. Akuno, learned counsel for the 1st and 2nd respondents, and Ms. Cheruiyot, learned counsel for the 3rd respondent. 22.The core issue in the petition is whether or not the appellant had a right to a third term, or was entitled to have a legitimate expectation that he would get a third term of 5 years. We have to recall that the 3rd respondent is a State Corporation under the State Corporations Act. It was similarly guided by its own statute, that is, The Kenya Reinsurance Corporation Act, 1997. In addition, being a State Corporation, it was also guided by the Mwongozo Code. Starting with The Kenya Reinsurance Corporation Act, the same did not make any provision on the appointment of the CEO. The State Corporations Act, Section 5 (3), was mentioned quite extensively in the case before the ELRC and before this Court. It provides as follows:5 (3)A state corporation may engage and employ such number of staff, including the chief executive on such terms and conditions of service as the Cabinet Secretary may, in consultation with the Committee, approve.Although Ms. Cheruiyot, when making her oral submissions before us, mentioned that Mwongozo only provides for two terms for a CEO of a State Corporation, she was unable to point us to any such clause in Mwongozo. On our part, we were unable to find any such explicit provision. What we could find in Mwongozo at Clause 1.5, is that the tenure of a Board member is limited to two terms of 3 years each. It would however appear from the correspondences exhibited, that generally, Government policy was that the term of a CEO also be restricted to two terms bar special circumstances. 23.In his judgment, the learned ELRC Judge held that the Minister (read Cabinet Secretary) could not overrule the Board on the issue of appointment of the CEO, his role being limited to approval of the terms and conditions of service. This was in consonance with a couple of ELRC decisions, specifically, Kosgei v National Industrial Training Authority & another; Cabinet Secretary Ministry of Labour and Social Services (3rd respondent) (Petition 70 of 2019) [2020] KEELRC 543 (KLR) (7 August 2020) (Judgment) and Okoiti v The Board, Export Processing Zones Authority & 3 others; Otieno (3rd respondent) (Petition E133 of 2021) [2022] KEELRC 3771 (KLR) (29 July 2022) (Judgment). Ms. Guserwa indeed cited both decisions in her submissions before us, urging that her client was entitled to be given a third term since the Board had approved the same. In the case of Kosgei vs National Industrial Training Authority & Another, the petitioner had served one term and had applied to be considered for appointment to a second term. The Board, in a meeting held on 19 March 2019, approved the appointment. However, in a twist of events, the Chairman of the Board wrote a letter dated 10 April 2019 informing the petitioner that his contract would not be renewed which prompted the petitioner to file suit to compel the appointment. Among the issues raised by the Chairman concerned audit issues but it turned out that these had already been considered at the time the decision was made by the Board to renew the petitioner’s contract. It would also appear that the letter of the Chair was not backed up by a resolution of the Board. In the circumstances, the court awarded the petitioner damages for breach of legitimate expectation that his contract would be renewed. In Okoiti v The Board, Export Processing Zones Authority & Others, the case concerned appointment of the CEO of the Export Processing Zones Authority (EPZA). The Board commenced the process of recruiting a CEO, advertised the position, and undertook interviews. The 3rd respondent, one Ezekiel Owuor Otieno, emerged the best candidate and the Board recommended his appointment as CEO. Section 6 (1) of the Export Processing Zone Act, provided that “The Cabinet Secretary may, on recommendation of the Authority, appoint a chief executive of the Authority whose conditions and terms of employment including remuneration shall be determined by the Cabinet Secretary.” The CS declined the recommendation of the Board and directed that a new recruitment exercise be conducted while extending the term of the Acting CEO for a further 3 months. The ELRC held that the CS could not overrule the Board and directed the gazettement of the 3rd respondent as CEO. 24.The above decisions are persuasive and not binding upon this court.However, our view is that they are distinguishable to the case at hand. It will be noted that in the case of Kosgei v National Industrial Training Institute, the issue concerned renewal of the petitioner’s contract for a second term. Further, there was never held a meeting of the Board, prior to the Chair writing to the petitioner that his contract would not be renewed, and it would appear on the facts that the Chair was acting unilaterally or with consultation of the CS and not with the Board. That is in contrast to this case where the appellant was seeking a third term and the Board had first sought guidance before confirming their recommendations. In the Okoiti v The Board, Export Processing Zones Authority & Others case, this was an initial recruitment, whose process had already been completed, and the best candidate selected. It had nothing to do with renewal of an existing term. 25.In the case before us, the appellant of course castigates the 1st respondent for not agreeing with the Board on the renewal of the term. We see no basis for his indignation. The Board was free to consult the 1st respondent as well as the Head of Public Service. There was nothing illegal in doing so. Under Mwongozo, Clause 1.16 outlines the Board’s independence. Under 1.16 (c) the Board is ‘free to seek independent advice in connection with their duties following an agreed procedure.’ Under 1.18, the Board is mandated to appoint and remove the CEO and also mandated to ensure a succession plan for the CEO and other senior management staff. Thus, ultimately, the Board was the overall decision maker but with freedom to consult. The CS represented the Government and had a mandate in pointing out Government policy to the Board. On matters related to Government policy there had to be coordination between the Board, the CS and the Public Service. We see nothing wrong in the Board seeking the advice and concurrence of the 1st respondent, or the 1st respondent seeking the advice of the Head of Public Service, and making their recommendations known to the Board. The Board still had the veto power to reject the advice and the recommendations of the CS and the Head of Public Service. On the flipside, the Board could also accept the advice of the 1st respondent and/or the Head of Public Service. The Board was the final decision maker either way. In this instance, the Board accepted the advice of the 1st respondent. We see no illegality in that. As we have mentioned, the Board could as well have proceeded to appoint the appellant on a five year term by disregarding the advice of the 1st respondent, but it opted to follow this advice. If the Board was not happy with this advice it could as well have challenged it, either in court or in other quarters, or straight away proceeded to assert its independent mandate and give the appellant a five year term. However, from the affidavit of the 3rd respondent, it emerges that the 3rd respondent stood guided by the advice of the 1st respondent and did not wish to go against it. The advice was in the circumstances reasonable, and it cannot by any stretch be claimed to be unfair, arbitrary, whimsical or unlawful. There was reference to Government policy not to have the term of a CEO extend to a third term. There were also concerns about the 3rd respondent’s preparation for a succession plan in line with the requirements of the Mwongozo Code. There was nothing wrong in the Board reconsidering their position, in light of this advice, and instead of granting the appellant a third five year term, appointing him for a one year term from April 2021- April 2022 with direction for a succession plan to be put in place. The contract was renewed once more in 2022 so that the term ends in April 2023. 26.The appellant accepted the one year terms by appending his signature to the letters of appointment. The appellant had the prerogative not to accept any one year term, and prior to signing these one year extensions, he had a right to come to court to challenge them, and assert an entitlement to a five year term rather than a one year contract extension. He did not do so. Instead, he signed up to the one year extensions. Just as the trial Judge held, we too do not find any evidence of any coercion, fraud or misrepresentation, and the only conclusion any reasonable person could reach, is that the appellant voluntarily and out of his own free will, accepted the last one year term. He was bound by that commitment and he could not now unilaterally extend this one year term to a five year term. 27.As submitted by counsel for the respondents, once he accepted the one year contract, he was bound by its terms. Counsel for the respondents referred us to various decisions of the ELRC on this point including the case of Anne Theuri v Kadet Limited (2013) eKLR; Margaret A. Ochieng vs National Water Conservation & Pipeline Corporation (2014) eKLR; and Registered Trustees De La Salle Christian Brothers T/A St. Mary’s Boys Secondary School vs Julius D.M Baini (2017) eKLR. In Margaret A Ochieng vs National Water Conservation & Pipeline Corporation, the ELRC (Rika J) held that :“Automatic renewal would undermine the very purpose of the fixed-term contract, and revert to indeterminate contracts of employment……. courts have upheld the principle that fixed-term contracts carry no expectancy of renewal, in a catena of judicial authorities…… the court is persuaded that the claim has no merit. The fixed term contract had its own in-built termination notice, in that the date of termination was advised to the claimant on execution of the three-year contract in December 2008. She knew termination would be upon the lapse of the three years in 2011…” 28.This Court (Sichale, Achode, Gachoka, JJ.A.) approved the above dictum in the case of Transparency International - Kenya v Omondi (Civil Appeal 81 of 2018) [2023] KECA 174 (KLR) (17 February 2023) (Judgment). Neutral citation: [2023] KECA 174 (KLR). The facts of the case were that the respondent was employed by the appellant for a two year contract commencing 1 October 2010 and ending 20 September 2012. The contract also provided that further extension ‘shall be subject to satisfactory performance and on-going requirement of your services by TI-Kenya.’ Upon expiry of the term, the appellant declined to extend the contract though it was apparent that the performance of the employee was satisfactory. The respondent sued for various orders including an order for damages equivalent to 2 years salary for the non-renewal of the contract. The appellant’s position was that the contract expired and a decision was made not to renew. The ELRC was persuaded that since the contract provided for a clause for renewal subject to satisfactory performance and requirement for her services, then there was a promise to renew. The court proceeded to award damages including an award of damages equivalent to 12 months of her salary. On appeal, this Court held as follows:“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 basis of her assertion that her employment was unfairly terminated was automatically not available to her. The Court of Appeal decision in Registered Trustees of the Presbyterian Church of East Africa & Another vs Ruth Gathoni Ngoto [2017] eKLR lends credence to our holding, 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 of April up to May,2010. Similarly, since the respondent’s contract came to an end by effluxion of time any claim for wrongful termination could not be maintained.” 29.Here, the appellant first signed a five year contract. This was renewed, and another five year contract entered into in 2016. It expired in 2021. There was no duty imposed upon the 3rd respondent to grant another 5 year term or any other term for that matter. In fact, the 3rd respondent only proceeded to enter into two short-term one year contracts, for purposes of continuity and to allow them time to recruit a new CEO. The last one year contract was entered into on 20 April 2022. That contract had an express clause on its duration and it provided that ‘The duration of the extension of the contract of employment will be (1) year commencing 12th April 2022 and the Board reserves the right to terminate or extend the contract depending on your performance.’ As explained in the Transparency International case (supra), such clause did not obligate a renewal, even where the performance of the employee was satisfactory. The employer still retained the discretion to either renew/extend the contract, or to decline to renew/extend it. There could be no legitimate expectation of an automatic renewal. The appellant could not therefore fault the respondents for declining to offer a full term of 5 years or extend the contract for any other period. 30.Lastly, in as much as the appellant couched his suit as a constitutional petition, in our view, the dispute was nothing beyond a mundane employer-employee dispute. The dispute was whether or not the appellant deserved a new 5 year contract after expiry of his first two full terms. We do not find any constitutional issues regarding such a dispute and the judge was right in finding that there was none. There was therefore no basis to claim general damages for violation of any Constitutional rights. We do not find it necessary to say more. 31.For the above reasons it will be seen that we find no merit in this appeal and it is hereby dismissed with costs. DATED AND DELIVERED AT NAIROBI THIS 10TH DAY OF JULY, 2026F. TUIYOTT……………………JUDGE OF APPEALNDUMA NDERI……………………JUDGE OF APPEALMUNYAO SILA……………………JUDGE OF APPEAL*I certify that this is a true copy of the originalSignedDEPUTY REGISTRAR