[2018] KEELRC 2250 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF

KENYA AT NAIROBI

CAUSE NUMBER 402 OF 2017

MICHAEL GICHUHI NGARI........................CLAIMANT

VERSUS

NAIROBI CITY COUNTY.........................RESPONDENT

RULING

1. By a Notice of Motion dated 27th February, 2017 the claimant sought the following interlocutory orders:

a. That this application be certified as urgent and service be dispensed with in the first instance.

b. That an order do issue restraining the respondent from removing the applicant from its pay roll pending the hearing and determination of this application.

c. That an order do issue restraining the respondent from removing the applicant from its pay roll pending the hearing and determination of this claim.

d. That the respondent be compelled to renew the applicant’s contract of employment unconditionally pending the hearing and determination of this application.

e. That the respondent be compelled to renew the applicant’s contract of employment unconditionally pending the hearing and determination of this claim.

2. The application was supported by the affidavit of the claimant who deponed on the main that:

a. That on 17th March, 2014, I entered into an employment contract with the respondent in which I was appointed as a Chief Officer in charge of Water, Energy and Natural Resources but was later put in charge of Transport, Roads and Public Works. ……..

b. That the said appointment was to take effect from 1st March 2014 and was communicated vide a letter dated 17th March, 2014.

c. That the contract expressly provided that the appointment was for a period of three years renewable subject to exemplary performance.

d. That upon appointment, I performed my duties effectively and efficiently and as a result of my exemplary performance, I was appointed to several committees within the County Government and was also appointed as Principal Authority to Incur Expenditure (AIE) for Public Works, Transport and Infrastructure and also for Ward Development Fund vote responsibilities which I am certain would not be allocated to me had my performance been not exemplary.

e. That sometimes in February 2017, I discovered a conspiracy to defraud the respondent’s County Government of Kshs 100,000,000/= in awarding a tender for supply of Asphalt Plant and upon discovery, I made a confidential written report to Dr Robert Ayisi , the County Secretary informing him of the irregularities I had noted in regard to the award of the tender and further recommended that the said tender be cancelled.

f. That I also copied and forwarded the report to the Directors, Legal Affairs Roads and Internal audit which were the relevant leaders to rely information of such a sensitive nature. The report was dated 13th February, 2017 and was received by the various heads on the 14th February, 2017.

g. That on 14th February, 2017 the respondent through its acting County Secretary deployed one Engineer Fredrick Karanja to take over my duties and the reason given for the deployment was my expected expiry of my employment contract.

h. That on 20th February, 2017 I received Notice of expiry of contract dated 15th February, 2017 and which further informed me that my contract would not be renewed.

i. That I was extremely shocked to receive the communication to the effect that my contract would not be renewed due to the fact that the only condition set for the renewal of the contract was exemplary performance and I have no doubt that my performance was exemplary.

j. That I have every reason to believe that the decision not to renew my contract was malicious and arbitrary and the intention was to punish me for failing to abet and condone the conspiracy to defraud the respondent’s County Government in the procurement process aforesaid as the notice not to renew my contract was made as soon as I voice my concerns to the relevant people.

3. When the matter came exparte before Lady Justice Mbaru on 28th February, 2017 she granted prayers 2 and 4 of the motion and directed that the matter be heard inter partes on 21st March, 2017. On 9th March, 2017 the respondent filed an application under certificate of urgency through Prof. Tom Ojienda SC seeking orders among others that:

a. This Honourable court be pleased to recall, review or set aside the orders issued on 28th February 2017 issuing interim orders restraining the respondent from removing the claimant from its payroll and compelling the respondent to renew the claimants’ contract of employment unconditionally pending the hearing and determination of this applicant.

b. This Honourable court be pleased to recall, review or set aside the orders issued on 28th Febraury, 2017 issuing interim orders restraining the respondent from removing the claimant from its payroll and compelling the respondent to renew

4. The application was based on grounds inter alia that:

a. There was material non-disclosure to the court that the 3 year fixed – term contract of Employment for the claimant was due to end on 28th February 2017 being the same date which he filed the application dated 28th February, 2017. Consequently, as a result of the material non-disclosure, the court through the orders dated 28th February 2017 was misled into putting itself in the shoes of the employer and proceeding to renew the claimant’s contract contrary to the principle that the court ought not to interfere with the managerial decisions of the employer.

b. By compelling the respondent to renew the claimant’s contract the court disposed of the suit at an interlocutory state ex parte as: one, the contract was expiring on 28th February 2017 and two: renewal of the contract was the substantive prayer that was made in the statement of claim that was filed by the claimant.

c. Through the impugned orders dated 28th February, 2017, the Honourable court granted substantive relief at an interlocutory state ex parte without outlining the exceptional circumstances that warranted the issuance of the mandatory order compelling the respondent to renew contract that had in any case already expired. The Honourable court further failed to give the reasons for the granting of the mandatory orders ex parte contrary to the practice that it must give its reasons for granting mandatory order at an interlocutory stage ex parte.

5. On 21st March, 2017 I issued directions that the respondent’s application dated 9th March, 2017 together with supporting affidavit and annextures be treated as the response to the application dated 27th February, 2017 and further that the parties do file submissions in respect of that application.

6. The court further varied its orders made on 28th February, 2017 to the extent that the claimant would remain on respondent’s payroll upto the date of expiry of his fixed term contract and further that the respondent would not make any recruitment to the claimant’s position pending the determination of the application dated 27th February, 2017.

7. The sum total of the claimant’s complaint in the application herein is that because of his exemplary performance the respondent was obligated to renew his contract. According to him the refusal to renew his contract was as a result of the discovery he made in February, 2017 of a conspiracy to defraud the respondent’s County Government or Kshs 100 million in awarding tender for the supply of Asphalt Plant which he reported confidentially to the County Secretary Dr Robrt Ayisi.

8. Counsel for the claimant relied on the case of Ruth Ngotho Vs PCEA [2010] eKLRand submitted that an employee is justified in legitimately expecting there would be a renewal of contract as their was a provision for doing so like in this case.

9. The respondent on the other had submitted that the claimant had no legal expectation that his contract would be renewed as it is the general principle that fixed term contracts carry no expectancy for renewal. Counsel for the respondent relied on the case of Margaret Ochieng Vs National Water Conservation & Pipeline Corporation [2014] eKLR.It is disputed that the claimant’s contract had a provision for renewal subject to exemplary performance. The claimant as deponed in his affidavit portions of which I have considered above, was of the view that his performance was exemplary hence was entitled to a renewal of contract. He relied on his appointment to several committees of the respondent as some of the evidence of his exemplary performance.

10. The respondent however, to the claimant’s disappointment did not renew his contract prompting the current suit. According to the claimant by communicating intention not to renew the contract the respondent was in breach of trust and express conditions for renewal as stipulated in the contract. Apart from urging the court to deduce that by appointing the claimant to several committees he had exemplary performance hence entitled to a renewal, the claimant never produced any letter, memorandum of minutes where renewal of his contract was ever hinted to.

11. The claimant has sought from the court among other remedies an order that the respondent be ordered to pay him some Kshs 7,640,964/= on account of loss of income for three years. Six months salary in lieu of notice and 12 months salary as compensation. This therefore is an acknowledgement that should the court reach the conclusion that refusal to renew the claimant’s contract was in breach of his contract, monetary damages would adequately compensate him.

12. The issue of the claimant’s exemplary performance which according to him is exhibited by appointment to several committees of the respondent is a matter for trial where these averments will be subjected to cross-examination. It cannot be decided on untested affidavit evidence.

13. Further, as has been stated by this court before, it cannot impose its will or views on what is purely a management discretion. The renewal or not of the claimants contract was a management discretion. The respondent chose not to renew the contract to the chagrin of the claimant. The respondent could have been wrong or influenced by improper motives but these are matters for full trial and in respect of which the court can award compensation. They do not suffice to be reasons to compel the respondent to keep live a contract which has expired.

14. In conclusion the court finds and holds that the prayers sought by the claimant in the interlocutory application are similar to those sought in the main claim and if granted at this stage, there would be no incentive to prosecute the main suit.

15. The court therefore finds the application without merits and hereby dismisses the same with costs. The suit shall proceed to trial on merits.

16. It is so ordered.

Dated at Nairobi this 16th day of February, 2018

Abuodha J. N.

Judge

Delivered this 16th day of February, 2018

Abuodha J. N.

Judge

In the presence of:-

…………………………………...…… for the Claimant

………………………………………. for the Respondent