https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1347

REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI CONSTITUTIONAL PETITION NO. E183 OF 2025 IN THE MATTER OF ACTUAL BREACH AND/OR CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 19, 20, 21,22, 23, 27, 28, 41, 43 AND 47 OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF REAPPOINTMENT OF A CHIEF EXECUTIVE OFFICER IN STATE PARASTALS AND GOVERNMENT ENTITIES AND IN THE MATTER OF THE GUIDELINES ON THE PROCEDURE FOR APPOINTMENT /REAPPOINTMENT OF CHIEF EXECUTIVE OFFICERS OF STATE CORPORATIONS AND OTHER ENTITIES AND IN THE MATTER OF THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS) PRACTICE AND PROCEDURE RULES, 2013 BETWEEN SAMUEL MUTHEMBA MUTURI …………………………………..…..…......PETITIONER VERSUS CONSOLIDATED BANK OF KENYA LTD ……………………….…….1ST RESPONDENT CABINET SECRETARY NATIONAL TREASURY & ECONOMIC PLANN'IN'G …………………………………………...2ND RESPONDENT DOMINIC MURAGE NJERU……….……………….…………………3RD RESPONDENT CORAM Before Lady Justice Jemimah Keli C/A Otieno JUDGMENT Introduction 1. The Petitioner commenced this suit vide an Amended Petition dated 16th October 2025 seeking the following orders:- 2. *A declaration that the Petitioner's right to fair labour practices under Article 41 of the Constitution has been violated by the 2nd Respondent;* 3. *A declaration that the Petitioner is eligible for renewal of his term for a further 3 years as the CEO of the 1st Respondent after the lapse of his term on 11th October 2025;* 4. *An order of MANDAMUS to compel the 1st Respondent to renew and the 2nd Respondent to confirm the reappointment of the Petitioner as the 1st Respondent's CEO based on his performance;* *IN THE ALTERNATIVE* 1. *Damages equivalent to salary for 3-years totaling to Kshs. 76,348,800/-, gratuity and all applicable benefits;* 2. *Costs of the Petition and interests thereon.* 3. *Any other further relief that this Honourable Court shall deem fit to grant.* 4. The Petition was filed alongside the Petitioner’s Supporting Affidavit sworn on 16th October 2025, and annexures thereto. 5. In response to the Amended Petition the 1st and 3rd Respondents filed a Replying Affidavit sworn by ROSE N. MUKOBA on 24th February 2026; while the 2nd Respondent filed grounds of opposition dated 21st November 2025. The Petitioner’s case in summary 1. The Petitioners’ case is that he is the 1st Respondent's Chief Executive Officer having been appointed vide a contract of employment dated 19th July 2022 for an initial renewable term of 3 years, which lapsed on 11th October 2025. In line with the guidelines for re-appointment of CEO's in parastatals and other government entities, the Petitioner sought for the renewal of his term on 19th January 2025, six months before the lapse of his first 3-year term contract. 2. It is averred that during the Petitioner’s employment on 3rd April 2024 and 28th January 2025, and prior to his application for contract renewal, the State Corporation Advisory Committee (SCAC) carried out the annual board evaluation which included the evaluation of the CEO for the years 2023 and 2024. The Petitioner was rated at 79.6% and 91% respectively. Separately the Petitioner's performance was evaluated by the 1st Respondent's Board for the period 2023 and 2024 and he was scored at 61.9% and 74.6%, rated as a good performance. The good performance rating emanated from the Petitioner’s efforts, alongside the 1st Respondent's Board, through which they managed to bring down the 1st Respondent’s losses by 70% from Kshs. 435 million recorded on 31st December 2022 to Kshs. 133 million on 31st December 2024, with the Bank's balance sheet growing by 13% from Kshs 15.5 Billion as at 31st December 2022 to Kshs. 17.5 Billion as at December 2025; a level which the Bank has not achieved for the last 20 years. 3. On 21st March 2025, the 1st Respondent's Board of Directors wrote to the 2nd Respondent with the recommendation that the Petitioner's contract should be extended for a further term of 3 years based on the Petitioner's good performance as aforesaid. However, it is the Petitioner’s case that the 2nd Respondent has without any legal basis declined to renew the Petitioner’s contract, and instead commenced the process of appointing a new CEO. It is stated that further re-engagement of the 2nd Respondent by the 1st Respondent's Board on the issue failed to yield any fruits, with the 2nd Respondent reiterating on 19th August 2025 and again on 17th September 2025 that the 1st Respondent's Board should commence the process of recruitment of a CEO. The Petitioner takes issue with the actions of the Chairperson of the 1st Respondent’s Board of giving him notice of the end of his contract on 11th October 2025, and directing him to proceed on leave pending the lapse of his contract, purportedly without the authority of the whole Board, which was still negotiating with the 2nd Respondent on his behalf. The Chairperson of the Board wrote to the Petitioner on 12th and 18th September 2025, informing him of the end of his contract and seeking a handover report. 4. The Petitioner states that on 3rd October 2025, the 2nd Respondent revoked the appointment of some members of the 1st Respondent’s board for the reason that they had recommended the appointment of the Petitioner for a further term of 3 years. On 8th October 2025, the 2nd Respondent purported to appoint the 3rd Respondent as Acting CEO which was communicated on 13th October 2025, to all staff of the 1st Respondent by an incoming Board member of the 1st Respondent who was yet to be cleared by the Central Bank of Kenya, Ms. Jane Wacuka Njogu-Macharia. 5. The Petitioner complains that the 1st and 2nd Respondents’ failure to renew the Petitioner’s contract of employment dated 19th July 2022 violated the Petitioner’s Article 27 right to equality before the law; Article 28 right to human dignity; Article 41 right to fair labour practices, and Article 47 right to fair administrative action. Further, the Petitioner cites violations of the Mwongozo Code of Governance for State Corporations which provides that: a CEO shall be appointed by the board of the respective state corporation; and a CEO shall serve for a period of 3 years' renewable once subject to performance evaluated by the board; and guidelines issued by the Executive Office of the President through the office of the Chief of Staff and Head of Public Service on the procedures for appointment/reappointment of CEOs for State Corporations and other public bodies, through the following Circulars: Circular Ref. No: OP/CAB.9/ lA dated 25th November 2022; Circular Ref. No: OP/ CAB.9 /lA dated 20th April 2022; Circular Ref. No: OP/CAB.9/lA dated 23rd November 2010; and Circular Ref. No: OP/CAB.9/lA Vol.17 dated 7th February 2003. 1. Specifically, Circular Ref. No: OP/CAB.9/1A dated 23rd November 2010 on the re-appointment of a CEO provides that: The CEO wishing to be reappointed will indicate interest by writing to the board at least 6 months before the expiry of his/her term;The Board will evaluate the performance of the CEO and make a report to the appointing authority with a recommendation on either renewal or termination of the contract upon expiry; In the event the that the Board does not recommend renewal of the contract, the CEO will be required to proceed on terminal leave to pave way for the recruitment and appointment of a new CEO. This is important to ensure smooth transition; The Board will recruit an acting CEO in consultation with the parent ministry and the State Advisory Committee (SCAC) as provided in section 27(1)(c) of Cap 446 in a caretaker position when the process of recruiting a CEO is ongoing. 2. The Circular further provides that the position of CEO shall only be declared vacant when the Board of Directors has no intention to renew the appointment of the incumbent for a further term. On the Board members, the Petitioner argues that once the Board members of a state corporation are appointed they must serve for the tenure as appointed and may only be removed by the President under Section 7(3) of the State Corporations Act upon stated reasons. 3. It is averred that the Petitioner complied with the relevant guidelines by seeking for renewal of his term on 19th January 2025, 6 months before the lapse of his initial term as stipulated in Circular Ref. No: OP/CAB.9/lA dated 23rd November 2010. His performance had been rated as “good” in line with the guideline that renewal of a CEO's contract is subject to performance and limited to a two-term limit. By allowing the 2nd Respondent to direct the appointment/re- appointment of the 1st Respondent's CEO vide his letters dated 19th August and 17th September 2025 contrary to the Board's recommendations in usurpation of the role of the Board, the Respondent’s violated the guidelines from Head of Public Service and the Mwongozo Code of Governance for State Corporations. It is stated that the 2nd Respondent has no authority or mandate to appoint the 3rd Respondent as the 1st Respondent's CEO, and that such appointment is an exclusive mandate of the Board. Indeed the 2nd Respondent acknowledged this position in his correspondences dated 19th August and 17th September 2025. The Petitioner avers that the 2nd Respondent also lacks authority to revoke the appointment of the 1st Respondent's Board members whose tenure is yet to lapse, with the exclusive mandate to revoke such appointment belonging to the President under Section 7(3) of the State Corporations Act and the mandate can only be exercised after evaluation and for stated reasons. **Respondents’ case in brief** 1. The 1st and 3rd Respondents oppose the Petition on the premise that it seeks to convert a purely contractual, fixed-term employment relationship into a constitutional claim without meeting the threshold set by law. They argue that the Petitioner's contract was a fixed-term contract which lapsed by effluxion of time on 11th October 2025 and did not confer any automatic right, entitlement or legitimate expectation of renewal; and state that the Petitioner has not demonstrated any constitutional violation attributable to the 1st Respondent capable of grounding the reliefs sought. 2. The 1st and 3rd Respondents explain that Section 5(3) of the State Corporations Act provides that a State Corporation may employ staff, including the Chief Executive Officer, on such terms and conditions as the Minister may approve. The 2nd Respondent exercises oversight over the 1st Respondent as the parent Ministry and majority shareholder on behalf of the National Government. The 1st Respondent is further governed by: the Companies Act, 2015; the Banking Act, Cap 488; the Central Bank of Kenya Act; the Mwongozo Code of Governance for State Corporations; and applicable Government circulars and policy directives. They clarify that the governance and management of the 1st Respondent is vested in its Board of Directors subject to statutory oversight and concurrence by the parent Ministry where required. 3. It is admitted that the Petitioner was appointed by the 1st Respondent as Chief Executive Officer vide a letter dated 19th July 2022 for a fixed term of three (3) years effective 1st August 2022, subject to regulatory approval. The appointment letter was for a fixed period of three (3) years, with a term that renewal, if any, was not automatic and was subject to application, performance evaluation and approval by the relevant authorities. The Central Bank of Kenya granted regulatory approval for the appointment; and the Petitioner served until the lawful expiry of his term on 11th October 2025. 4. While it is true that the application for renewal was required to be made at least six (6) months prior to the expiry of the term, and the Petitioner sought for renewal of his term as the CEO of the 1st Respondent well within the six (6) month period vide a letter dated 19th January 2025 following a performance appraisal which rated his performance as “good”, and the Board of the 1st Respondent recommended renewal, a positive appraisal and Board recommendation do not create an enforceable legal right to renewal. 5. The 1st and 3rd Respondents insist that the concurrence of the 2nd Respondent is mandatory pursuant to the State Corporations Act and applicable governance framework. In the present case, the 2nd Respondent declined to approve renewal and directed that the recruitment process for a substantive Chief Executive Officer be commenced. It is averred that non-renewal of a fixed-term contract does not require reasons unless expressly provided by contract or statute. 6. In light of the events described by them, the 1st Respondent denies violating the rights of the Petitioner, and emphasizes that it at all material times acted with due regard to the applicable laws and regulations including the Mwongozo Code of Governance for State Corporations, as well as good faith. They emphasize that the Petitioner's contract was not terminated prematurely but expired by effluxion of time, and insist that non-renewal of a fixed-term contract does not amount to unfair labour practice. It is also averred that the Petitioner has failed to plead with precision the alleged constitutional violations. 7. On the issue of appointment of the 3rd Respondent as the acting CEO, the 1st and 3rd Respondents state that following the lapse of the Petitioner's contract, the appointment of an acting CEO was a lawful, operational necessity to avoid a leadership vacuum and ensure continuity of the Bank's operations. The said appointment was made within the framework of the law and applicable governance instruments and did not prejudice the Petitioner in any manner. 8. On his part, the 2nd Respondent challenges the Petition for the reasons that fixed-term contracts do not carry any expectation for renewal and the employer is not obligated to explain the reasons for non-renewal; and it is trite law that a court of law cannot rewrite terms of a contract between parties. He argues that the concurrence of the 2nd Respondent to renewal of the Petitioner’s contract is mandatory since the 1st Respondent is fully owned by the Government of Kenya with the majority ordinary shareholding in the hands of the National Treasury. He further states that the Petitioner cannot rely solely on a positive performance appraisal however excellent to compel renewal. 9. On the Petitioner’s claim for damages equivalent to his salary for 3 years, the 2nd Respondent vehemently argues that this prayer should be as the Petitioner has not demonstrated future unemployability. DETERMINATION 1. The petition was canvassed by way of written submissions. Both parties complied. Issues for determination 1. In his submissions dated 19th November 2025, the Petitioner identified the following issues for determination: * 1. Whether the 2nd Respondent’s decision declining to re-appoint the Petitioner as the 1st Respondent’s CEO was legal and constitutional; and 2. Whether the 2nd Respondent has the authority to appoint the 3rd Respondent as the 1st Respondent’s CEO and to revoke the appointment of Board members 2. On their part, the 1st and 3rd Respondents, in their submissions dated 12th February 2026, identified the following issues for determination: * 1. Whether non-renewal of the Petitioner’s fixed-term contract violated constitutional or statutory rights. 2. Whether the Petitioner had a legitimate expectation or enforceable right to renewal. 3. Whether the appointment of the 3rd Respondent as Acting CEO was lawful. 4. Whether the reliefs sought mandamus and anticipatory damages are legally available. 3. The 2nd Respondent identified the following issues for determination in his submissions dated 18th February 2026: * 1. Whether legitimate expectation arises in respect to renewal of Petitioner’s employment contract. 2. Whether the Petitioner herein is entitled to the reliefs sought in the Amended Petition. 4. The court finds that the facts in the case are not in dispute. The prayers in the petition are as follows- 1. A declaration that the Petitioner's right to fair labour practices under Article 41 of the Constitution has been violated by the 2nd Respondent; 2. A declaration that the Petitioner is eligible for renewal of his term for a further 3 years as the CEO of the 1st Respondent after the lapse of his term on 11 October 2025; 3. An order of MANDAMUS to compel the 1st Respondent to renew and the 2nd Respondent to confirm the reappointment of the Petitioner as the 1st Respondent's CEO based on his performance; 1. IN THE ALTERNATIVE 4. Damages equivalent to salary for 3-years totaling to Kshs 76,348,800/-, gratuity and all applicable benefits; 5. Costs of the Petition and interests thereon. 6. Any other further relief that this Honourable Court shall deem fit to grant. 5. The court then finds that the issue for determination to be- 1. Whether a legitimate expectation arises in respect to renewal of Petitioner’s employment contract 2. Whether the petitioner is entitled to the remedies sought Whether legitimate expectation arises in respect to the renewal of Petitioner’s employment contract Petitioner’s submissions 1. As averred by the 1st respondent in its Supporting Affidavit at paragraph 5, the 1st Respondent is both a financial institution and a State Corporation. As such, it is governed by the Constitution, statutes, Government circulars and the Mwongozo the Code of Governance for State Corporations 2015 [Mwongozo]. The Mwongozo at Chapter 1 Clause 1.18[1][a] provides for the manner of the appointment of CEO as follows:- The Board should:- (a) Appoint and remove the CEO; (b) Ensure that the CEO is recruited through a competitive process… Further at Clause 1.12 [6] Mwongozo provides that the re-appointment for a subsequent term for any Board Member or CEO shall be based on a favourable evaluation as spelt out in the evaluation tool. In the same limb, the Circular Ref No. OP/CAB.9/1A [Annexure 9 at page 54] clearly sets out the guidelines in the re-appointment of CEO’s in State Corporations that can be summarized as:- i. The CEO wishing to be reappointed will indicate his interest by writing to the Board at least six months before the expiry of his term; ii. The Board shall evaluate his performance and make a report with a recommendation of either renewal or termination of the contract upon expiry; iii.… iv. … The circular also adds that :- ‘For the avoidance of doubt, the position of the Chief Executive Officers shall be declared vacant only when the Board of Directors has no intention to renew the appointment of the incumbent for a further term.’ The Petitioner was appointed to the position of the CEO vide a letter of appointment dated the 19th July 2022[Annexure SMM1 at page 16]. In the said letter at clause 2, the CEO would at all times report to the Board of Directors of the 1st Respondent. Additionally, the Board reserved the right to terminate the contract either prematurely or by notice to the Petitioner. The Petitioner duly indicated his interest to be reappointed to the Board on the 29th of January 2025 which was at least six months before the expiry of his term. Subsequently, the Board engaged the State Corporation Advisory Committee to carry out the Annual Board Evaluation. As correctly averred in the 1st Respondent’s Replying Affidavit at paragraphs 19, 20 and 21, the Petitioner exemplary scored in the board evaluations by SCAC and the internal evaluation. Specifically, the 1st Respondent’s Board together with the Petitioner managed to bring down the losses by 70% from Kshs 435 million recorded at 31st December 2022 to Kshs 133 million as at 31st December 2024. Further, the Bank’s balance sheet in grew by 13% from Kshs 15.5 Billion at 31st December 2022 to Kshs 17.5 Billion at December 2025; a level the bank had not achieved for the last 20 years. Consequently, the 1st Respondent made an assessment of the findings and unanimously resolved to renew the Petitioner’s contract for a further term of 3 years. [Annexure AA-5 at page 100 of the 1st Respondent’s bundle] This position was communicated to the 2nd Respondent on the 21st March 2025 and the 1st Respondent specifically recommended an extension of the Petitioner’s contract for a period of three years. [Annexure AA-6 at page 102 of the 1st Respondent’s bundle]. Both of these actions were in concurrence with the Circular of the 23rd November 2010. At the same time, the 1st Respondent wrote to the Chief of Staff and the Head of the Public Service recommending an extension of the Petitioner’s contract for a further term of 3 years. It was only until the 19th of August 2025, that the 2nd Respondent in responding to the 1st Respondent’s letter requested that the 1st Respondent commences the process of recruitment of a new CEO. This action in the first place, contravenes the proviso in the circular reproduced at paragraph 11 above seeing that the position of the CEO was never declared vacant as the 1st Respondent’s board was keen on renewing the term of the incumbent. Secondly, Section 5[3] of the State Corporations Act, delimits the mandate of the 2nd Respondent as purely to approve the terms and conditions of service, to wit;- “A state Corporation may engage and employ such number of staff, including the Chief Executive, on such terms and conditions of service as the Minister May, in Consultation with the Committee, approve” This position was rehashed in the case of Paul Kipsang Kosgei V national Industrial Training Authority& Another; Cabinet Secretary, Ministry of labour & Social Services(Interested Party) (2020) eKLR, where the court held that:- “Further under Section 5(3) of the State Corporations Act, the Minister had no power in the renewal of the contract. The only role of the Minister is to approve the terms and conditions of service for the Chief Executive Officer and staff. This is confirmed by the fact that the Petitioner’s original appointment letter was signed by the Chairman, Prof. Thomas E. Akuja PhD who also signed the gazette notice dated 27th June 2014. The Minister thus has no role in the appointment and could therefore not veto the decision of the Board.” Further, the 2nd Respondent’s letter of the 19th of August 2025 acknowledges the exemplary performance of the Petitioner and without any reasons to the contrary, the 2nd Respondent unilaterally requested that the 1st respondent does commence the process of recruitment of a new CEO. Even after the 1st Respondent’s request of the 12th of September 2025 that the 2nd Respondent does re-consider his decision, the 2nd Respondent only cites that he has taken account of all the relevant factors, and reaffirms the earlier decision. [Annexure AA-19 at page 126 of the Respondent’s bundle] Further, the Referenced circular of the 23rd November 20210 expressly state that the CEO is required to proceed for the terminal leave only if the Board does not recommend the renewal of the contract. It thus follows that the 2ND Respondent’s letter of the 17th September directing the Petitioner to proceed for leave and the 1st respondent’s letter of the 18th September following suit were in contravention of the said circular. It thus follows that the 2nd Respondent had no authority to overrule the decision of the Board and especially without tendering any reasons for the same. Even as much as the Mwongozo Code operates on a ‘comply or explain’ basis, the 2nd Respondent did not provide any reasons for the deviation from the provisions of the Mwongozo Code. It thus follows that the actions of the 2nd Respondent to consequently decline the renewal of the petitioner’s contract without any reasons whatsoever, to overrule the 1st Respondent’s board’s decision while acting ultravires thus violated the Petitioner’s right to a fair administrative action that is lawful, reasonable and procedurally fair contrary to Article 47 of the Constitution. The importance of this right to a fair administrative action cannot be gainsaid. The Court of Appeal in the case of Judicial Service Commission v Mbalu Mutava & another [2014] eKLR that; “Article 47(1) marks an important and transformative development of administrative justice for, it not only lays a constitutional foundation for control of the powers of state organs and other administrative bodies, but also entrenches the right to fair administrative action in the Bill of Rights. The right to fair administrative action is a reflection of some of the national values in article 10 such as the rule of law, human dignity, social justice, good governance, transparency and accountability. The administrative actions of public officers, state organs and other administrative bodies are now subjected by Article 47(1) to the principle of constitutionality rather than to the doctrine of ultra vires from which administrative law under the common law was developed.” Secondly, the actions of the 2nd Respondent to unjustifiably and illegally ,by acting ultravires, decline the renewal of the petitioner’s contract violated the Petitioner’s right to fair labour relations under Article 41 of the Constitution. The 1st and 3rd respondents’ submissions 1. Non-Renewal of a fixed-term contract does not create a cause of action. The Petitioner’s contract expired by effluxion of time on 11 October 2025 and did not confer any automatic right to renewal. It is settled law that fixed-term contracts do not carry a legitimate expectation of renewal, and no reasons are required for non-renewal. In Nguru v Buds and Bloom Ltd (2022) KEELRC 4007, the Court held that non-renewal does not constitute unfair labour practice. The Petition, therefore, lacks a legal foundation. 3. Positive performance does not create a right to renewal. While the Petitioner relies on positive performance appraisals, the law is clear that performance alone cannot compel renewal. In Mbatia v Kirinyaga Water & Sanitation Company (2023), the Court held that good performance does not create an enforceable entitlement to renewal. The Petitioner cannot hang on to the issue of good performance as a ground for compelling the employer to renew the Petitioner’s contract. The Petitioner has not shown any clear promise, binding assurance, or established practice guaranteeing renewal. Board recommendations and performance appraisals do not constitute a promise capable of grounding legitimate expectation. Similarly, the Board’s recommendation did not bind the appointing authority and did not crystallise into a legal right. Concurrence of the 2nd respondent was mandatory The 1st Respondent is a State Corporation wholly owned by Government, and oversight by the National Treasury is mandatory. The decision not to renew the contract was made pursuant to lawful policy and governance authority, and cannot be characterized as unlawful or arbitrary. Pursuant to Section 5(3) of the State Corporations Act: “A state corporation may employ staff, including the Chief Executive, on such terms and conditions of service as the Minister may approve.” The import of this provision is unequivocal: The Board may appoint a CEO; However, the terms and conditions of service must be approved by the Cabinet Secretary (the “Minister” within the meaning of the Act). Therefore: Renewal of the CEO’s contract cannot crystallize without ministerial approval; A Board recommendation does not bind the appointing authority; Concurrence of the parent ministry is mandatory. The Petitioner’s argument that the 2nd Respondent “usurped” the Board’s mandate is therefore legally untenable. Further it is worthy to note that 1st respondent is 100% government-owned, with the National Treasury holding a direct 93.5% stake as of 2026. Court cannot rewrite the parties’ contract. The Petitioner seeks orders that would rewrite a contract and impose renewal obligations not agreed upon. In National Bank of Kenya v Pipelastic Samkolit (K) Ltd [2001] eKLR, the Court held that courts cannot rewrite contracts . Therefore granting the reliefs sought by the petitioner would amount to judicial overreach. 6. No violation of articles 27, 28, 41 or 47 of the constitution The Petitioner served his full contractual term, he was not dismissed, and was not subjected to unfair procedure. Non-renewal of a fixed-term contract does not amount to unfair labour practice or denial of fair administrative action. The Petition fails to meet the constitutional precision and proof threshold. Appointment of the 3rd respondent was lawful and necessary. The appointment of the 3rd Respondent as Acting CEO was made to ensure continuity of operations and avoid a leadership vacuum, and was lawful and governance-compliant. The Petitioner suffered no prejudice from the acting appointment. The court has already recognized overriding public interest. This Honourable Court in it’s ruling delivered on 9th October 2025 previously declined conservatory relief, noting that public interest and institutional continuity outweighed the Petitioner’s claims The substratum of the Petition was found not to be at risk. Claim for mandamus is legally unsustainable Mandamus only issues where a clear statutory duty exists. The Petitioner has not demonstrated any enforceable public duty owed to him requiring renewal of his contract The relief is therefore unavailable in law. 2nd respondent’s submissions 1. The Petitioner passionately submitted that he had a legitimate expectation that his employment contract would be renewed by the Respondent herein, a position the Respondent strongly disagrees with. Your Ladyship, it is trite law that fixed term contracts do not carry any expectation for renewal and that the employer is not obligated to explain the Reasons for non-renewal as was held in the case of Nguru -V- Buds and Bloom Limited (2022) KEELRC4007(EKLR) and reiterated in Civil Appeal No. 81 of 2018 Transparency International (Kenya) -V- Teresa Carlo Omondi Further we rely in the decision held in Francis Chire Chachi v Amatsi Water Services Company Limited (2012) EKLR where the Court held that: - 5 “This court has recently stated that the employers are under no obligation to give employees reasons for non-renewal of a fixed term contract unless there is such an obligation created in the expiring contract.” Honourable Court, to further reinforce this point that fixed term contract do not carry with it any right and obligation after expiry of the contract, we rely on several case including the case of the Registered Trustees of the Presbyterian Church of East Africa & Another v Ruth Gathoni Ngotho Kariuki (2017) eKLR, the case of Fatuma Abdi v Kenya School of Monetary Studies (2017) eKLR and the case of George S Onyango OGW v Board of Directors of Numerical Machining Complex Limited, Minister for Industrialization & Attorney General. My Lady, this position was reiterated Civil Appeal No. 81 of 2018Transparency International (Kenya) -V- Teresa Carlo Omondi and in a nutshell the Appellate Court held as follows: - a) There is no point of having a fixed -term contract if the contract automatically renews itself, it beats the purpose. b) On whether the expiry of a fixed term amounts to dismissal or termination, the court answered emphatically in the negative, stating that an automatically renewable fixed term contract is a contradiction in terms since the contract has definite start and expiry dates. c) The renewal is at the discretion of the employer. d) The appellate court found that no such obligation to explain the reasons for non-renewal of a contract exists in the case of a fixed term contract. Decision 1. The petitioner held a fixed-term contract for 3 years. The contract was dated 19th July 2022, and the parties agreed that it was to lapse on 11th October 2025, an issue justified due to the process of appointing the CEO requiring input from the Central Bank of Kenya. Clause 5 of the contract provided for the duration of the contract as follows: ' DURATION This contract of employment will be for three (3) years commencing 18th August 2022, and the Board reserves the right to terminate the contract prematurely depending on your performance.’ It is apparent the contract had no renewal clause. 2. The petitioner on the 29th January 2025 applied for renewal of the contract 6 months to expiry and relied on Government circulars and the Mwongozo the Code of Governance for State Corporations 2015[Mwongozo]. The Mwongozo at Chapter 1 Clause 1.18[1][a] provides for the manner of the appointment of CEO as follows:- ‘The Board should:- * + - 1. Appoint and remove the CEO; 2. Ensure that the CEO is recruited through a competitive process…’ Further, at Clause 1.12 [6] Mwongozo provides that the re-appointment for a subsequent term for any Board Member or CEO shall be based on a favourable evaluation as spelt out in the evaluation tool. In the same limb, the Circular Ref No. OP/CAB.9/1A [Annexure 9 at page 54] clearly sets out the guidelines in the re-appointment of CEO’s in State Corporations that can be summarized as:- i. The CEO wishing to be reappointed will indicate his interest by writing to the Board at least six months before the expiry of his term; 1. The Board shall evaluate his performance and make a report with a recommendation of either renewal or termination of the contract upon expiry;The circular also adds that :- ‘For the avoidance of doubt, the position of the Chief Executive Officers shall be declared vacant only when the Board of Directors has no intention to renew the appointment of the incumbent for a further term.’ 2. The Board, on receipt of the renewal request by the petitioner, discussed the performance of the petitioner, which had been rated as good performance by the Board as well as the State Corporations Advisory Committee. The Board vide its Chairman’s letter dated 21st March 2025, recommended renewal /extension of contract of the Petitioner for 3 years to the Cabinet Secretary, National Treasury and Economic Planning. The Cabinet Secretary responded to the request for renewal in the negative vide letter to the Chairman of the Bank’s Board dated 19th August 2025. The Cabinet Secretary acknowledged the petitioner's work performance and stated that, in light of the said information and taking into account all relevant factors, he recommended that the Board appoint a new CEO to achieve a more sound and sustainable business turnaround required to take the bank to the next phase of its strategic direction. 3. The board sat again on 10th September 2025 and considered the feedback by the Cabinet Secretary. The Board further wrote to the Cabinet Secretary vide letter dated 12th September 2025, referring to the petitioner's good performance and requesting the Cabinet Secretary to endorse the renewal of the contract for another three years. 4. The Cabinet Secretary further responded vide letter dated 17th September 2025 and reiterated his earlier position and asked the Board to have the petitioner proceed on leave for the outstanding 20 days of leave. Vide letter dated 12th September 2025, the Chairman communicated to the petitioner the decision of the Cabinet Secretary and stated that the contract would expire on 11th October 2025. 5. Ideally, the petitioner’s contract was to end on effluxion of time, and there would be no cause of action on the termination. The petitioner submitted that the communication by the Cabinet Secretary was only until the 19th of August 2025 after decision of the Board. That the 2nd Respondent in responding to the 1st Respondent’s letter requested that the 1st Respondent commences the process of recruitment of a new CEO. The petitioner contended that the advice in the first place contravenes the proviso in the circular reproduced at paragraph 11 above, seeing that the position of the CEO was never declared vacant, as the 1st Respondent’s board was keen on renewing the term of the incumbent. Secondly, Section 5[3] of the State Corporations Act, delimits the mandate of the 2nd Respondent as purely to approve the terms and conditions of service, to wit;- “A state Corporation may engage and employ such number of staff, including the Chief Executive, on such terms and conditions of service as the Minister May, in Consultation with the Committee, approve” This position was rehashed in the case of Paul Kipsang Kosgei V national Industrial Training Authority& Another; Cabinet Secretary, Ministry of labour & Social Services(Interested Party) (2020) eKLR, where the court held that:- “Further under Section 5(3) of the State Corporations Act, the Minister had no power in the renewal of the contract. The only role of the Minister is to approve the terms and conditions of service for the Chief Executive Officer and staff. This is confirmed by the fact that the Petitioner’s original appointment letter was signed by the Chairman, Prof. Thomas E. Akuja PhD who also signed the gazette notice dated 27th June 2014. The Minister thus has no role in the appointment and could therefore not veto the decision of the Board.” Justice Onyango further held ‘Further under Section 5(3) of the State Corporations Act, the Minister had no power in the renewal of the contract. The only role of the Minister is to approve the terms and conditions of service for the Chief Executive Officer and staff. This is confirmed by the fact that the Petitioner’s original appointment letter was signed by the Chairman, Prof. Thomas E. Akuja PhD who also signed the gazette notice dated 27th June 2014. The Minister thus has no role in the appointment and could therefore not veto the decision of the Board.’ 6. The issue of legitimate expectation was expounded by the Court of Appeal Transparency International - Kenya v Omondi [2023] KECA 174 (KLR) as follows-‘On the reliance of the doctrine of legitimate expectation, in the Supreme Court Case, petition No 14 of 2014 [*Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others*](https://new.kenyalaw.org/akn/ke/judgment/kesc/2015/13) [2014] eKLR, the court held: “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 Townand Others*; 2008 (6) S.A 129 (C.C.) paragraph 41.The 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; and; d.there cannot be a legitimate expectation against clear provisions of the law or the *[Constitution](https://new.kenyalaw.org/akn/ke/act/2010/constitution%22%20%5Ct%20%22_blank)*.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.” 7. The question on my mind is whether the legitimate expectation of renewal was created by the respondent and was induced by the decision maker as one of the factors as per the above decision. Justice Onyango in Kosgei v National Industrial Training Authority & another; Cabinet Secretary Ministry of Labour and Social Services (Interested Party) [2020] KEELRC 543 (KLR) held Section 5(3) of the State Corporations Act, the Minister had no power in the renewal of the contract. The only role of the Minister is to approve the terms and conditions of service for the Chief Executive Officer and staff. section 5(3) states - 1) Subject to this Act, every state corporation shall have all the powers necessary or expedient for the performance of its functions. (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.’ Was the board the final decision-maker on the tenure of service, that is, the continued service of the petitioner? The Court of Appeal had opportunity to consider the role of the Cabinet Secretary under section 5 of the State Corporations Act where the Cabinet Secretary renewed the contract for 1 year instead of 3 years as stated in Mwongozo code, in Torutt v State Corporations advisory Committee & another; Commission for Human Rights and Justice (Interested Party) [2024] KECA 469 (KLR)(AK Murgor, KI Laibuta, GV Odunga)and observed- ‘While this communication suggests that there may have been a report in which it was resolved that the appellant’s term be renewed for three years, the foregoing correspondence clearly show that what the Board did was to make recommendations to the Cabinet Secretary as regards the appellant’s extended tenure. The Board did not, and could not, make a decision regarding the CEO’s tenure since that was a decision reserved by the Mwongozo Code for the relevant government organ(s). [*Black’s Law Dictionary 10th Edition*](https://www.worldcat.org/title/blacks-law-dictionary/oclc/877371635) at page 1464 defines “recommendation” as:“A specific piece of advice about what to do, esp. when given officially. A suggestion that someone should choose a particular thing or person that one thinks particularly good or meritorious.” 34.Accordingly, the Cabinet Secretary was not bound by the advice or suggestion by the 1st respondent’s Board that the appellant’s term be extended for three (3) years. As we have stated, the final decision as to the terms and conditions of the renewed tenure rested, not with the Board, but with the Cabinet Secretary. There was nothing wrong with the Board making a recommendation but the ultimate decision rested with the Cabinet Secretary. There was no legal representation that the Board could make to the appellant in those circumstances that could give rise to legitimate expectation since the Board had no mandate to set the terms and conditions of renewal of the appellant’s engagement. De Smith, Woolf & Jowell, “[*Judicial Review of Administrative Action” 6thEdn. Sweet & Maxwell page 609*](https://www.amazon.com/Smith-Woolf-Jowell-Judicial-Administrative/dp/0421690305) states that:“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.” [Emphasis added].’’ The decision of the Court of Appeal is binding. I upheld the decision to find that the Cabinet Secretary was not bound by the decision of the Board recommending the renewal of the petitioner’s contract. The court holds that no legitimate expectation arose as at no time was a decision communicated to the petitioner by the Board that the contract had been renewed. The communication dated 12th September 2025 was on end of contract before it expired on 11th October 20205. The decision in Kosgei v National Industrial Training Authority & another; Cabinet Secretary Ministry of Labour and Social Services (Interested Party) [2020] KEELRC 543 (KLR) is distinguished. The Cabinet Secretary acted legally and thus there was no evidence of violation of the fair labour rights of the petitioner. The contract ended by effluxion of time(Transparency International case applied). Whether the petitioner was entitled to relief sought 1. The petitioner sought for the following reliefs - 1. A declaration that the Petitioner's right to fair labour practices under Article 41 of the Constitution has been violated by the 2nd Respondent; b. A declaration that the Petitioner is eligible for renewal of his term for a further 3 years as the CEO of the 1st Respondent after the lapse of his term on 11 October 2025; c. An order of MANDAMUS to compel the 1st Respondent to renew and the 2nd Respondent to confirm the reappointment of the Petitioner as the 1st Respondent's CEO based on his performance; IN THE ALTERNATIVE d. Damages equivalent to salary for 3-years totaling to Kshs 76,348,800/-, gratuity and all applicable benefits; e. Costs of the Petition and interests thereon. f. Any other further relief that this Honourable Court shall deem fit to grant. 1. On the prayer for Order of Mandamus -I find the Order was not available to the petitioner having held the non-renewal of the contract was lawful and the contract ended by effluxion of time. In defining the scope Order of Mandamus the Court of Appeal in Kenya National Examination Council v Republic; GGN & 9 others (Ex parte) [1997] KECA 58 (KLR) stated- ‘24.The next issue we must deal with is this: What is the scope and efficacy of an Order of Mandamus? Once again we turn to Halsbury’s Law of England, 4th Edition Volume 1 at page 111 from paragraph 89. That learned treatise says:-“The order must command no more than the party against whom the application is made is legally bound to perform. Where a general duty is imposed, a mandamus cannot require it to be done at once. Where a statute, which imposes a duty leaves discretion as to the mode of performing the duty in the hands of the party on whom the obligation is laid, a mandamus cannot command the duty in question to be carried out in a specific way.” In the instant case the 1st and 2nd respondents were not legally bound to renew the contract of employment of the Petitioner thus no basis of Order of Mandamus. 1. The alternative prayer was-Damages equivalent to salary for 3-years totaling to Kshs 76,348,800/-, gratuity and all applicable benefits. The remedy sought is not legally tenable. The remuneration of an employee is contractual and in the instant case the contract was 3 years. There is no employer obligation beyond the contract. The court already held there was no basis to find legitimate expectation of the renewal. The Supreme Court pronounced itself on anticipatory compensation and held the same as not tenable in Ngokonyo & 2 others v Telkom Kenya Limited [2025] KESC 75 (KLR) where it observed – ‘Modern judicial thinking had moved away from allowing claims for anticipatory salaries or future earnings up to the retirement date. Such awards amounted to unjust enrichment, offended public policy, and contradicted the principle that employment contracts were inherently terminable. Employees were only entitled to payment for services actually rendered, and once employment ended, whether lawfully or unlawfully, the relationship ceased. Damages for wrongful termination were therefore confined to contractual or statutory entitlements such as notice pay, accrued benefits, or pension, and could not include speculative or future earnings. Claims for anticipatory salaries or future salary earnings lack a statutory foundation under both the repealed Employment Act and the current Employment Act (Cap 226).The general measure of damages did not extend to salaries for the unexpired period to retirement age. Remedies were generally confined to notice pay, payment in lieu of notice, and contractual terminal benefits. Awards of arrears of salary and benefits may be made in exceptional cases where the termination was declared unlawful and a nullity, effectively treating the employee as if still in service. An employee had a duty to mitigate any loss that may arise from unlawful termination of employment.’’ The court applied the foregoing decision to disallow the alternative prayer for damages equivalent to salary for 3-years totaling to Kshs 76,348,800/-, gratuity and all applicable benefits; 2. In conclusion, the Court holds that the Petition lacks merit and is dismissed. The contract ended by effluxion of time, and the Cabinet Secretary was not bound by the recommendations of the Board on the extension of the contract. The court to temper justice with mercy, this being a constitutional petition, makes no order as to costs. The file is marked as closed. 3. It is so Ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 15TH DAY OF MAY, 2026. JEMIMAH KELI, JUDGE. IN THE PRESENCE OF: Court Assistant: Otieno Petitioner: Malenya 1st and 3rd Respondents: Nyoike h/b Kioko 2nd Respondent: absent