https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1839

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT** **AT NAIROBI** *(Before Hon. Lady Justice Monica Mbarũ)* **PETITION NO. E266 OF 2025** **KENYA UNION OF CLINICAL OFFICERS PETITIONER** *VERSUS* **KENYATTA UNIVERSITY TEACHING REFERRAL AND** **RESEARCH HOSPITAL RESPONDENT** **JUDGMENT** The petitioner is a registered trade union with the mandate to represent the interests of clinical officers in employment and labour relations. The respondent is a state corporation, a level 6 tertiary hospital for specialised healthcare, training, and research. The petitioner is seeking the following orders: 1. *A declaration that the respondent violated the petitioners’ rights under Articles 10, 27, 41 and 47 of the Constitution by its various decisions by way of letters addressed to various members of the petitioner in October 2025, March 2026 and April 2026 informing them that their employment contracts would not be renewed.* 2. *An order of certiorari does issue, bringing into court and quashing the* *various decisions of the respondent by way of letters addressed to various members of the petitioner in October 2025, March, and April 2026, informing them that their employment contracts would not be renewed.* 1. *An order of prohibition does issue restraining the respondent from implementing or otherwise giving effect to the various decisions of the respondent by way of letters addressed to various members of the petitioner in October 2025, March, and April 2026, informing them that their employment contracts would not be renewed.* 2. *An order of mandamus does issue directing the respondent to reinstate forthwith the members of the petitioner whose employment was terminated as a result of various letters dated 15 October 2025, March and April 2026 and issue letters of employment to the affected members of the petitioner on permanent and pensionable terms comparable to the letters and terms issued to medical professionals of other cadres in 2025.* 3. *An order for compensation by way of damages for any loss of income suffered by the respondents as a result of failure or delay in issuing letters of employment to the affected members of the petitioner on permanent and pensionable terms.* 4. *Costs are borne by the respondent on a full indemnity basis.* The petition is that the petitioner’s members were variously employed by the respondent under renewable term contracts, variously between the years 2020. He also recruited medical professionals from other cadres on similarly renewable-term contracts. Since then, the respondent has renewed the contracts over time. However, on 15 October 2025, the respondent issued various letters to the petitioner's members, informing them that their contracts would not be renewed when they lapse on 24 December 2025. Other members of the petitioner have also been issued letters dated 26 March and 2 April 2026 informing them that their contracts will not be renewed when they lapse on 2 May, 23 May, and 1 June 2026. The affected members of the petitioner: 1. Anastatia Wambui Muiruri 2. Martin Mwaura Githaiga 3. Sammy Kikwai 4. Lynette Gathoni Gathu 5. Alex Muthka Mutinda 6. Isaac Jimmy Ndiema 7. Roselyne Oring Akoth 8. Richard Kimari Githinji The petition states that the letters notifying the petitioner's members of the non-renewal did not provide a reason. For this reason alone, the decision is unconstitutional and in breach of Article 47 of the Constitution and Section 4(2) of the Fair Administrative Actions Act. The petitioner is aware that the respondent intends to replace the clinical officers whose employment contracts are to be terminated. The affected members of the petitioner cover 15 positions at the hospital, which currently has a total of 25 clinical officers. International best practice for the clinical officer-to-patient ratio, as set by the World Health Organisation, is 1 clinical officer per 10,000 population for outpatient services. 3 clinical officers per 50-bed facility for inpatient care. The respondent has a 650-bed capacity level 6 tertiary hospital. The current clinical officer-to-patient ratio at the respondent is therefore below the internal best practice. The repeated renewals over time and the manifest need for the affected clinical officers’ services at the hospital created a legitimate expectation that the employment of the petitioner’s members would not be terminated abruptly. The refusal to renew the contracts of the petitioner’s members without replacement is therefore arbitrary, unreasonable and generally in breach of Article 47 of the Constitution. It violates the right to healthcare under Article 43 of the Constitution. During the same period in 2025, the respondent decided to convert the contracts of medical professionals from other cadres to permanent, pensionable terms. The members of the petitioner and other health care professionals serve under comparable circumstances, except for differences in their respective cadres. They are therefore subject to being treated similarly under the principle of equality and non-discrimination at the workplace. The clinical officers have the right to similar hiring and promotion opportunities on permanent and pensionable terms. The respondent has not justified the differentiated treatment of the petitioner’s members. The petition is that the respondent is in breach of articles 10, 27, 41, 43, and 47 of the Constitution, which guarantee the principles and values of fairness, non-discrimination, fair labour practices, and the right to fair administrative action. The orders sought should be issued. The petition is supported by the affidavit of George Gisore, the general secretary of the petitioner, who avers that the members of the petitioner who are in the employment of the respondent have signed Form S dated 16 July 2025, consenting to membership as required under section 48 of the Labour Relations Act (LRA). The respondent's decision not to renew the petition members' contracts violates the Constitution and the law. There was no notice or due process under Article 47 of the Constitution; the orders sought in the petition should be issued. In reply, the respondent filed the Replying Affidavit of Dr Tabby Mungai and Mercy Ngugi, the human resource officer, who aver that some members of the petitioner have declined to represent the petitioner and have not authorised the filing of the suit as herein done. There is no involvement of such members before the filing of the suit to consent to the same. The members of the petitioner were employed on fixed-term contracts with an option to renew that was not automatic. The clinical officers who were employed were to serve Gatundu Level IV Hospital and were deployed to the respondent with clear letters, which they accepted. There were fixed-term contracts. Renewal was not meant to be automatic. The court is not expected to supervise employers in performing routine human resource functions. The court can only intervene where the employer is in contravention of the law. The respondent has not breached the terms of the contract with the clinical officers as alleged. The human resource policy has been adhered to, and, in considering whether to renew the contract, the process follows the Public Service Commission-approved instructions. The respondent has decided not to renew or extend the contract following removal from the human resource instruments approved by the Public Service Commission. Other contracts for different employee cadres have been affected by this framework. The respondent has thus treated all its employees equally; the allegation has no basis, and the respondent's claim should be dismissed with costs. The parties filed written submissions. The petitioner submitted that the respondent is in breach of articles 10, 27, 41, and 47 of the constitution by failing to guarantee the petitioner’s members the right to lawful, reasonable, and procedural fairness. In **Ethics and Anti-Corruption Commission & Others v Ojienda & 2 Others [2022] KESC,** the court held that the Constitution leaves no doubt that administrative action is not merely an act of omission but one that relates to the management of an institution's affairs. By failing to provide reasons for the non-renewal of contracts, the respondent is in breach of the constitution. In **Kipsang v Kenya Revenue Authority [2025] KEELRC**, the court held that the employer’s internal communications created a binding legitimate expectation that a fixed-term contract would be renewed and converted to permanent and pensionable terms. In this case, the petitioner’s members have been discriminated against by the respondent for failing to renew their contracts, as have other healthcare professionals. In **Dr. Samson Gwer & 5 others v Kenya Medical Research Institute (KEMRI) & 3 others [2014] KEELRC**, the court held that employment discrimination is outlawed under section 5 of the Employment Act and the Constitution. The orders sought should be issued with costs. The respondent submitted that the petition is incompetent for violating the doctrine of constitutional avoidance. It does not raise any constitutional issue or infringe any law. The same should have been filed as an ordinary suit pursuant to the Employment and Labour Relations Court (Procedure) Rules. The petition is also incompetent for want of authority from the alleged members of the petitioner. In **Mwanthi Mugwe & 6 others v Ali Sheikh Mohammed & 8 others [2014] KEHC**, the court held that the legitimacy of a representative suit derives from the authority conferred by the individual parties to the suit. Without authority, such a suit is incompetent. The contracts of the petitioner’s members were fixed in time. This did not create any expectation for renewal or extension as alleged. The employer is allowed under the Employment Act to issue a fixed-term contract that is lawful and valid. In **Savings and Loan Kenya Limited v Mayfair Holdings Limited [2012] eKLR,** the court held that the object of a written agreement must be addressed objectively. The parties intended to be bound by a fixed-term contract. The term of the contract has lapsed, and a lawful notice of non-renewal was issued; the orders sought should not be issued. The petition is without merit and should be dismissed with costs. **Determination** The petition is that the respondent has refused to renew the employment contracts of the petitioner’s members. It has further refused to issue a new contract giving permanent and pensionable terms similar to those of other healthcare professionals employed by the respondent. The respondent asserts that this is not a proper petition. It issued the petitioner’s members with contracts with a term limit. Such did not create an automatic expectation for renewal. The orders sought should not be issued. The petitioner filed a petition. A Memorandum of Claim as required under Rule 10(3) of the Employment and Labour Relations Court (Procedure) Rules would have sufficed. The facts, as presented, and the orders sought, as outlined above, would have been addressed in an ordinary suit. In [**Hassan v Simidi & another [2019] KECA 107 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/2019/107/eng%402019-12-06)**,** the court emphasised that under Article 41 of the Constitution, the rights are now enacted under the Employment Act and the LRA. A party should not needlessly invoke a constitutional petition route where the issue at hand can well be addressed in an ordinary claim. The court held: *“The Article 41 rights are enacted in the*[*Employment Act*](https://new.kenyalaw.org/akn/ke/act/2007/11)*and*[*Labour Relations Act*](https://new.kenyalaw.org/akn/ke/act/2007/14)*. The two Acts and the rules made thereunder provide adequate remedy and orderly enforcement mechanisms. The 1st respondent filed a petition directly relying on the provisions of*[*the Constitution*](https://new.kenyalaw.org/akn/ke/act/2010/constitution)*for enforcement of contractual rights governed by the*[*Employment Act*](https://new.kenyalaw.org/akn/ke/act/2007/11)*without seeking a declaration of invalidity of the provisions of the*[*Employment Act*](https://new.kenyalaw.org/akn/ke/act/2007/11)*or alleging that the remedies provided therein are inadequate. The petition did not raise any question of the interpretation or application of*[*the Constitution*](https://new.kenyalaw.org/akn/ke/act/2010/constitution)*.”* Thus, this is not a proper petition. Equally, the respondent has challenged the fact that there is no authority for the petitioner’s members to file this suit. The petitioner filed Form S, where the subject members have signed their membership. Under the LRA, membership in a trade union is permitted, and the relevant trade union may attend and represent its members. However, the terms and conditions of employment can only be negotiated with the subject employer upon recognition under section 48 of the LRA and the execution of a CBA. However, where the trade union brings a suit before the court, Rules 8 and 9 of the Employment and Labour Relations Court (Procedure) Rules must be adhered to. Certificate of Conciliation under the LRA or a suit filed particularising the individual claims. Equally, the essence of Rule 23 is to have the letter of authority for the various persons on whose behalf the suit is filed. For the integrity of the suit, such persons must be listed and execute the letter of authority. The petition listed the affected members, but there is no letter of authority. Despite submitting the petition, the affected members have not authorised the petitioner to file the suit against the respondent as the employer. Fundamentally, as a trade union regulated under the LRA, there is no Certificate of Conciliation or Non-Conciliation issued by the Minister before the commencement of these proceedings. The petitioner has not stated the exceptional circumstances for filing the petition without adhering to section 69 of the LRA. The petition is thus premature. On the substantive issue of renewal of contract and employment on permanent and pensionable terms, the parties have no Recognition Agreement. So far, a form signed by various members of the petitioner has been submitted. The petitioner is thus allowed to represent its members as herein done, save that the letter of authority to file suit is lacking. Further, for the terms and conditions of employment of its members, a collective bargaining agreement (CBA) must be secured with the respondent to enjoy the status of negotiating the employment terms and conditions that its members should enjoy. Until then, the right to enter into a fixed-term contract, piece-rate, casual, or other necessary terms of employment for the business is lawful and valid pursuant to section 10(3) of the Employment Act. The petitioner asserts that other health care professionals are present on the respondent's shop floor. However, there is no case in which these other healthcare professionals have negotiated a CBA that applies to their members as similarly placed by the respondent, for the court to apply the terms thereof and have the petitioning members remit the agency fees. It is therefore imperative for the petitioner to secure recognition and proceed to negotiate a CBA thereof. Pending agreed terms and conditions of employment for the cited clinical officers in the service of the respondent, the application of section 10(3) of the Employment Act concerning securing an employment relationship is lawful. The petitioner's admission that its members were on fixed-term contracts, as evidenced by their start and end dates, constitutes valid employment status. The respondent thus had no requirement to issue notice of renewal or non-renewal. A fixed-term contract is lawful and valid under Section 10(3) of the Act. This is emphasised in the case of [**Transparency International Kenya v Teresa Carlo Omondi Civil Appeal No. 81 of 2018**](https://new.kenyalaw.org/akn/ke/judgment/keca/2023/174)**;** the court held: *“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.”* This position is reiterated in **Francis Chire Chachi v Amatsi Water Services Company Limited, [2012] eKLR,** where the court held: *“… employers are not under any obligation to give employees reasons for non-renewal of fixed term contracts, unless there is such an obligation created in the expiring contract. Section 35 (2) of the Act provides for termination of employment by notice and where the notice is greater than one month then the same should be applicable. …”* Equally, in this case, although the petitioner has the right to represent its members who have subscribed to its membership, without a Recognition Agreement leading to a CBA with terms and conditions of employment for its members, the respondent is lawfully entitled to issue fixed-term contracts to the clinical officers. The individual members referenced by the petitioner were on fixed-term contracts with start and end dates. Notice for renewal or non-renewal was unnecessary on the part of the respondent. On costs, the petition not being properly instituted, the petitioner lacking the necessary authority of its members to attend herein, the petition is without merit. The petitioner shall meet the costs due to the respondent. **Accordingly, the petition is hereby dismissed. Costs to the respondent.** **Delivered in open court this 30th day of June 2026** **M. MBARŨ** **JUDGE** **In the presence of:** Court Assistant: Samuel Maruga ……………………………………………… and ………………….…………………………...