https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1431

Kenya Shipping Clearing Freight Logistics and Warehouses Workers Union v Volt Management Services Ltd & another (Employment and Labour Relations Cause E921 of 2023) [2026] KEELRC 1431 (KLR) (28 May 2026) (Judgment) Neutral citation: [2026] KEELRC 1431 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Employment and Labour Relations Cause E921 of 2023 AN Mwaure, J May 28, 2026 Between Kenya Shipping Clearing Freight Logistics and Warehouses Workers Union Claimant and Volt Management Services Ltd 1st Respondent Keitt Fresh Ltd 2nd Respondent Judgment Introduction 1.The Claimant commence this suit via Memorandum of Claim dated 7th July 2023 seeking the following orders:i.A declaration does issue, declaring that the Respondents jointly and severally violated Grievants’ labour and employment rights, and the said actions amounted to unfair/bad labour practices.ii.A declaration does issue, declaring that Grievants’ employment contracts were open contracts and could only been terminated as per the law.iii.Respondent jointly and severally compensate the Grievants as per tabulations contained at paragraphs 12, 14 and 16 of this Claim respectively.iv.The cost of this suit be borne by Respondents.v.Any other order the Court may grant for the ends of justice to meet. Claimant’s case 2.The Claimant union avers that although it has not yet attained the statutory simple majority for recognition, the grievants were bona fide employees of the Respondents, who operated jointly one as principal employer and the other as labour outsourcing agent. 3.The Claimant avers that the grievants, namely Christine Ngina Reuben (earning Kshs.13,573/= per month, demanding Kshs.940,608.90/= comprising one month’s notice, 75 days’ unpaid leave, severance pay, 24 months’ compensation, and a certificate of service), Barongo Nyakundi Grace (earning Kshs.13,573/= per month, demanding Kshs.483,407.60/= comprising one month’s notice, severance pay, 24 months’ compensation, 73 days’ unpaid leave, and a certificate of service), and Vione Mwango Nyamboga (earning Kshs. 13,573/= per month, demanding Kshs.543,337.60/= comprising one month’s notice, severance pay, 12 months’ compensation, 54 days’ unpaid leave, and a certificate of service), were engaged as general workers under successive fixed-term contracts which were repeatedly renewed until 28th February 2021, when the Respondents declined further renewal without lawful cause. 4.The Claimant union contends that this amounted to unfair termination contrary to Sections 37, 43, and 45 of the Employment Act, 2007 and violated the grievants’ constitutional rights under Articles 22(1) and 41(a). 5.The Claimant union avers that the conciliator’s efforts to resolve the dispute were frustrated by the respondents, resulting in a certificate of unresolved dispute. 6.The Claimant union therefore prays that the Honourable Court finds both respondents jointly liable for unlawful termination and redundancy under section 40 of the Employment Act, and orders payment of the tabulated dues together with issuance of certificates of service. 1st Respondent’s reply to memorandum of claim 7.The 1st Respondent opposed the memorandum of claim via statement of response dated 4th June 2024. 8.The 1st Respondent, in its Statement of Response, categorically denies the allegations of unfair termination advanced by the Claimant and avers that the grievants were engaged strictly under fixed-term contracts which lawfully expired on 28th February 2021 by effluxion of time. 9.The 1st Respondent contends that the contracts expressly stipulated the terms of engagement, including salary, house allowance, leave entitlements, and notice of expiry, all of which the grievants voluntarily accepted and acknowledged by appending their signatures thereto. 10.The 1st Respondent maintains that no termination or summary dismissal occurred, that all statutory obligations including NSSF remittances were duly discharged, and that certificates of Service remain available for collection. 11.The 1st Respondent further asserts that the Claimant’s prayers are baseless, frivolous, and an abuse of the Court’s process, urging that the suit be dismissed with costs. 12.Parties canvassed the suit by way of written submissions. Claimant’s submissions 13.The Claimant submitted that the 2nd Respondent, Keitt Fresh Ltd, is a joint employer with the 1st Respondent under section 54(1) of the Labour Institutions Act, 2007, since the Service Agreement of 5th December 2019 shows the 2nd Respondent determined wages, supervised employees, reimbursed leave, and assumed liability for wrongful termination claims. 14.The Claimant submitted that the succession of multiple fixed‑term contracts created continuous employment and a legitimate expectation of renewal, as affirmed in Kenya Plantation & Agricultural Workers Union v Finlays Horticulture Kenya Ltd [2015] KEELRC 1368 (KLR) and Momanyi v Attorney General & Another [2012] KEHC 5446 (KLR). 15.The Claimant contended that the non‑renewal of the contract on 28th February 2021 amounted to unfair termination under sections 41, 43, and 45 of the Employment Act, 2007), since no valid reason was given, no hearing was conducted, and the timing suggested retaliation for union activities, contrary to Article 41 of the Constitution and section 5 of the Labour Relations Act. Reliance is placed on Donald Odeke V Fidelity Security Limited [2012] KEELRC 17 (KLR) and Transport Workers Union v. Mombasa Maize Millers Ltd [2020] eKLR to emphasize that even in fixed‑term contracts, procedural fairness is required, and in the case Joseph Njuguna v Ionides Energy Ltd [2021] eKLR argue that employers must maintain and produce proper leave records, failing which the employee’s claim is accepted. 16.Accordingly, the Claimant prays for notice pay, accrued leave, compensation for unfair termination, service pay, and a certificate of service as provided under the Employment Act, together with costs and interest, the same to be enforced jointly and severally against the Respondents. 1st Respondent’s submissions 17.The 1st Respondent submitted that the grievants were engaged strictly under fixed‑term contracts, voluntarily executed and acknowledged by them, which expired by effluxion of time on 28th February 2021. The Respondent contended that there was no unlawful or unfair termination, as the contracts carried their own in‑built termination dates, and the grievants were fully aware of and accepted those terms. 18.The Respondent relied on the Court of Appeal case in Krystalline Salt Limited v Kwekwe Mwakele & 67 Others [2017] KECA 717 (KLR), which recognizes fixed‑term contracts as a lawful category under the Employment Act, and in Samuel Chacha Mwita v Kenya Medical Research Institute [2015] KEELRC 35 (KLR), where the court held that parties are bound by the agreed duration of such contracts and the court cannot interfere unless contrary to law. Further authorities reinforce this principle: Emmanuel Musembi Nthambi v Tarmal Wire Products Ltd [2019] KECA 773 (KLR); Francis Tonui v Heifer Internationa Kenya [2017] KEELRC 101 (KLR); Rajab Barasa & 4 others v Kenya Meat Commission [2016] KEELRC 1190 (KLR); Margaret A Ochieng v National Water Conservation & Pipeline Corporation [2014] KEELRC 328 (KLR); Willy Changwony v Laikipia University [2021] KEELRC 1604 (KLR); Trocaire v Catherine Wambui Karuno [2018] KECA 769 (KLR); and Amatsi Water Services Company Limited v Francis Shire Chachi [2018] KECA 255 (KLR), all affirming that fixed‑term contracts terminate automatically upon expiry and do not create legitimate expectation of renewal. 19.The 1st Respondent further submitted that the grievants were duly paid all their contractual dues, including salary, allowances, leave days, and overtime, as evidenced by payslips. Consequently, the issue of unfair termination does not arise, as the contracts ended lawfully by effluxion of time. 20.On costs, reliance is placed on Cecilia Karuru Ngayu v Barclays Bank of Kenya & Another [2016] KEHC 7064 (KLR), where the court reiterated that costs follow the event and may be awarded to compensate the successful party. 21.In conclusion, the 1st Respondent prays that the Honourable Court finds that the grievants were not unlawfully terminated, that their claims are frivolous, and that the Respondent is entitled to costs for defending the suit. 22.At the time of writing this judgment, the 2nd Respondent did not file its response or respective submissions in relation to this cause. Analysis and determination 23.The court has considered the pleadings together with the submissions on record; the issues for determination are as follows:a.Whether the grievants were unlawfully and unfairly terminated or their contracts expired by affluxion of time.b.If (a) above is in the affirmative, whether the grievants are entitled to the reliefs sought.c.Who should bear the costs of the suit. 24.In Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others [2014] KESC 53 (KLR), the Supreme Court held as follows:“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 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.) paragraphThe 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; andd.there cannot be a legitimate expectation against clear provisions of the law or the Constitution. De Smith, Woolf & 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.” 25.In Transparency International - Kenya v Omondi [2023] KECA 174 (KLR) where the Court of Appeal 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.” 26.In Registered Trustees of the Presbyterian Church of East Africa & another v Ruth Gathoni Ngotho- Kariuki [2017] KECA 194 (KLR) the Court of Appeal held as follows:“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.” 27.In this instant case, the grievants were engaged as general workers by the 1st Respondent, an outsourcing company, and deployed to the 2nd Respondent. Their employment was structured through successive three‑months fixed‑term contracts renewed from 2018 until 28th February 2021, when the 1st Respondent informed them that no further renewal would be made. The 1st Respondent maintains that the contracts expressly set out the terms of engagement including salary, house allowance, leave entitlements, and notice of expiry which the grievants voluntarily accepted by signing. It asserts that there was no termination or summary dismissal, and that all statutory obligations such as NSSF remittances were duly discharged, and that certificates of service remain available for collection. 28.The court is cognisant of the case among a good number of others Registered Trustees of the Presbyterian Church of East Africa and Another -vs- Ruth Gathoni Ngotho Kariuki (Supra) which provided that fixed terms contracts carries no rights obligation or expectations beyond the date of expiry. 29.The case of Emmanuel Musembi Nthambi -vs- Tamal Wire Products Ltd (2019) eKLR the Court of Appeal held “The learned Judge found the Appellant’s employment was based on contract and not otherwise. The contract was for affixed term contract and upon expiry the Respondent exercised its discretion not to renew it.” 30.The courts have held time and again that it cannot rewrite contracts on behalf of the parties.The parties are bound by their contracts. The term in the fixed terms were well in the privy of the respective parties and they assented to them. They may have had legitimate expectation that their contracts would be renewed but this was not logical legitimate expectation. In the case of Transparency International Kenya -vs- Omondi (2023) KECA 174(KLR) the Court of Appeal held that:- “Indeed the doctrine of legitimate expectation does not arise in renewal of a fixed term contract and it is non-renewal cannot constitute unfair termination or dismissal” 31.The court holds that the grievants’ employment was governed by fixed‑term contracts which carried clear commencement and expiry dates, renewed periodically until 28th February 2021. Upon lapse of the final contract, the employment relationship terminated by effluxion of time. The court finds that no unlawful termination occurred, as the 1st Respondent was under no obligation to provide reasons for non‑renewal. While the grievants may have harboured a legitimate expectation of renewal, such expectation cannot override the express terms of a fixed‑term contract. The Respondent duly communicated that the contracts would not be renewed, and the court holds that the cessation of employment was lawful and consistent with the governing contractual framework. 32.In view of the foregoing, the court finds that the Claimants have not proved their case for violation of grievants’ Labour rights. The claim is dismissed but the court directs that the 1st Respondent to pay the grievants their respective dues including any unpaid salary and any accrued leave under Section 74 of the Employment Act. They are to be issued certificate of service as per Section 51 of the Employment Act. 33.The court will exercise its inherent discretion and order each party to bear its own costs. Case to be mentioned on 2nd July 2026 to report on compliance. Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAKURU THIS 28TH DAY OF MAY, 2026.ANNA NGIBUINI MWAUREJUDGEORDERIn view of the declaration of measures restricting Court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open Court. In permitting this course, this Court has been guided by Article 159(2)(d) of the Constitution which requires the Court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this Court the duty of the Court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.A signed copy will be availed to each party upon payment of Court fees.