https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2352

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KAKAMEGA** **CAUSE NO. E018 OF 2025** **MOSES ONYANGO……………………………..…....CLAIMANT** **-VERSUS -** **MASINDE MULIRO UNIVERSITY……..............RESPONDENT** **(BEFORE HON. JUSTICE DAVID NDERITU)** **JUDGMENT** 1. **INTRODUCTION** 2. Through Osundwa & Company Advocates, the Claimant commenced these proceedings by way of a memorandum of claim dated 7th May 2025, seeking for the following reliefs – 3. ***A declaration be issued that the Respondent has violated the Claimant's constitutional rights.*** 4. ***An order be issued directing the Respondent to present the Claimant's file for deliberation and renewal of his contract.*** 5. ***An order that having worked for a period of over four (4) years, the Respondent should employ the Claimant on permanent and pensionable basis.*** 6. ***General damages be granted to the Claimant for violation of his constitutional rights.*** 7. ***Exemplary damages be granted to the Claimant for violation of labour practices under the laws of Kenya.*** 8. ***Interests on (iii) and (iv).*** 9. ***Costs.*** 10. ***Any other relief as this Honourable Court may deem just to grant.*** 11. The memorandum of claim was accompanied with a verifying affidavit sworn by the Claimant, a list of witnesses dated 7th May 2025, the Claimant’s written statement, a list of documents, and copies of the listed documents attached. 12. The Respondent entered appearance through Ms Mburu, Senior Legal Officer, and filed a statement of response dated 27th May 2025. The response was accompanied with a list of witnesses, the written statement of Bernard Ooko (RW1), a list of documents of even date, and copies of the listed documents attached. 13. The Respondent later filed the written statement of Josephat Mulama Shigogodi (RW2) dated 6th October 2025. 14. With leave of court, the Claimant also filed a further list of documents dated 29th September 2025 and copies of the listed documents attached. 15. The cause came up in court for hearing on 24th September 2025 when the Claimant (CW1) testified and was cross-examined. CW1 was recalled to further testify on 14th October 2025 when he finally closed his case. The defence was heard on 18th November 2025 with RW1 and RW2 testifying, and the Respondent’s case was then closed. 16. Counsel for both parties filed written submissions. Dr. Shitembwe for the Claimant filed written submissions dated 15th January 2026 while Ms Mburu for the Respondent filed written submissions dated 19th January 2026. 17. **THE CLAIMANT’S CASE** 18. The Claimant’s case is expressed in the memorandum of claim, the Claimant’s witness statement, the documents filed, the oral testimony by the Claimant in court, and the written submissions by his Counsel. 19. In the memorandum of claim, the Claimant pleaded that he is a graduating of the Respondent, having obtained a Bachelor of Education (Arts) degree in 2018. He pleaded that after graduating, he served as an intern from July 2019 to September 2020 before being employed in 2021 as an Administrative Assistant in the office of the Deputy Vice-Chancellor (Academic and Students Affairs). He pleaded that owing to his performance, he was later transferred to the Vice-Chancellor's office and subsequently to the School of Education, wherein he served until the expiry of his contract on 31st January 2025. 20. The Claimant averred that he was among the six employees whose contracts were due for renewal. He stated that he applied for the renewal and was appraised by his supervisor, attaining a score of 91%, which he claims was the highest among the six employees. He contends that the established procedure required all renewal applications to be presented before the Management Committee for deliberation. However, unlike the files of his five colleagues, his file was allegedly withheld and referred to the Vice-Chancellor for concurrence instead of being considered by the Management Committee. 21. The Claimant further pleaded that although he had no disciplinary record, he was placed on a 30 days’ compulsory leave commencing on 19th December 2024, pending investigations into his conduct. He stated that he complied with the directive and resumed duty after the leave period upon instructions from the Registrar. He asserted that no investigations were ever conducted, he was never summoned before any disciplinary committee or panel and, no allegations/charges were communicated to him. His contract thereafter expired on 31st January 2025 without any communication regarding renewal. 22. It is the Claimant’s case that all the other five employees who applied for renewal of their contracts were successful and resumed duty, and three of them were subsequently confirmed on permanent and pensionable terms. He further states that on 7th April 2025 the Respondent advertised internal promotions for which his colleagues were eligible to apply, yet his application for renewal of his contract remained unresolved. 23. The Claimant contended that he suffered to discrimination because the established contract renewal procedure was not followed in his case. He maintained that he had a ***legitimate expectation*** that his contract would be renewed in view of his satisfactory performance, highest appraisal score, and his clean disciplinary record. He further alleged that the Respondent violated his constitutional rights under ***Articles 10(2), 27, 28 and 41 of the Constitution,*** subjected him to mental anguish and uncertainty, and denied him fair labour practices. 24. In his testimony in court, CW1 reiterated the contents of the foregoing pleadings and his written statement dated 7th May 2025. He produced and adopted the documents in his list of documents as exhibits 1 to 14. 25. In cross-examination, the Claimant stated that he applied for renewal of his contract on 9th January 2025 vide a letter dated 6th January 2025, while on compulsory leave. He stated that he reported to work after the compulsory leave on 19th January 2025 and continued working. He then noted that the handwritten note on his application for the renewal of contract indicated that his application had been forwarded to the University Management Board (UMB) for consideration. He conceded that his contract was not renewed as it was held in abeyance pending investigations. He conceded that on the allegation of discrimination, the other employees worked either as driver, security officer, or office administrator, and were in Grade 8 just like him. 26. He testified that the Vice Chancellor (VC) had informed him that he had scored higher than the other employees in his appraisal, although he did not call the VC as a witness to confirm this allegation. He conceded that he was not aware whether any of the other employees were under suspension like him on account of indiscipline. 27. In re-examation, the Claimant stated that he was not informed of any charges against him on account of misconduct. He further stated that there were five administrative assistants like him whose contracts were renewed, but he did not receive a response to his request for renewal of his contract. 28. In the statement of response, the written statements and oral testimonies of RW1 and RW2, the Respondent’s case is that the Claimant was employed in various capacities by the Respondent and, his fixed-term contract expired on 31st January 2025. 29. The Respondent asserted that the Claimant was employed on a fixed-term contract and that it retained the discretion to renew such contracts. It contended that a fixed-term contract is self-executing upon expiry and does not confer any legitimate expectation for renewal. 30. The Respondent stated that upon the Claimant applying for renewal of the contract, his request was forwarded together alongside all other applications to the 686th UBM meeting. It averred that the Board considered the application and, under Minute UMB/0930/02/25, resolved to decline renewal of the Claimant's contract pending the conclusion of ongoing investigations into his conduct. 31. The Respondent denied that the Claimant was discriminated asserting that the Claimant was employed on a fixed-term contract pending the appointment of a substantive office holder. The Respondent further denied the allegations that it violated the Claimant's constitutional rights under ***Articles 10(2), 27, 28 and 41 of the Constitution***. 32. The Respondent maintained that, since the Claimant's contract expired by effluxion of time, the claim is invalid and devoid of merits. 33. In his testimony in court, RW1, an assistant registrar, reiterated the contents of the statement of response and his written statement dated 9th June 2025. He adopted the documents in the Respondent’s list dated 27th May 2025 and produced them as exhibits 1 and 2. 34. In cross-examination, RW1 stated that it is the Registrar Administration, that sat on the University board, and RW1 could only sit in the said Board on delegated authority. He pointed out that the minutes of the Board showed that the Board took the decision not to renew the Claimant’s contract. RW1 confirmed that the Claimant applied for renewal of his contract, but the same was not renewed due to pending investigations. He stated that the position that the Claimant held was subsequently filled. RW1 further stated that while he was aware that there were ongoing investigations into the contact of the Claimant, he was neither aware of what they related to nor the status of the investigations. He confirmed that some of those whose contracts were renewed are on contract and he is not aware of any disciplinary proceedings against any of them. 35. In his testimony in court, RW2, a Senior Assistant Registrar, reiterated the contents of his written statement dated 6th October 2025. He testified that he was in attendance at the meeting held on 4th February 2025 taking the minutes thereof, during which the Claimant’s application for the renewal of his contract was discussed and declined. 36. In cross-examination, RW2 stated that the Claimant’s contract lapsed in January 2025, and his application for renewal was made on 4th February 2025 and later declined. He stated that he was not part of the team that investigated into the Claimant’s conduct and thus he could not ascertain the status of the investigations. 37. He asserted that the minutes of the Board meeting were approved on 4th March 2025 and confirmed on 7th April 2025. RW1 further stated that the issue of the renewal of the Claimants contract has not come up again as an agenda and he had no information on the status of the pending investigation. 38. He confirmed that some of the contracts were renewed. He further stated that the Claimant’s appraisal was good as he had scored 91%. 39. **SUBMISSIONS** 40. Counsel for the Claimant submitted globally in support of the claim, asserting that after being placed on 30 days of compulsory leave on 19th December 2024, the Claimant resumed duty upon expiry of that leave but was not informed of the nature or the outcome of the alleged investigations. 41. It is submitted that in accord with the Respondent’s established practice, the Claimant applied for renewal of his contract on 6th January 2025. His application received favourable recommendations from the Dean of the School of Education, the Registrar (Administration), and the Vice-Chancellor, before being forwarded to the UMB for consideration. The UMB, however, resolved that the renewal be declined pending investigations into his conduct. 42. It is submitted that the evidence demonstrated that there were no pending investigations against the Claimant. The Claimant testified that no communication regarding investigations was ever made to him, no report was presented to the UMB and, as at the time of the hearing of this cause there were no ongoing investigations. Counsel further highlighted the Claimant's positive performance record, including letters of commendation and an appraisal score of 91%, in demonstrating that the Claimant’s performance was exemplary. 43. Counsel further contended that the Claimant’s colleagues employed on similar renewable contracts had their contracts renewed while the Claimant was singled out for non-renewal. Counsel submitted that the Respondent’s witnesses similarly admitted that they were unaware of any investigations against the Claimant apart from the reference in minutes of the UMB meeting. 44. Counsel submitted that by conduct the Respondent created legitimate expectation to the Claimant that his contract would be renewed. It was argued that by inviting him to apply for the renewal, processing the application through all the relevant departments, conducting his performance appraisal, obtaining favourable recommendations and, tabling the application before the UMB for consideration, the Respondent represented that the contract renewal process would be fair. The Claimant, therefore, legitimately expected that his application would be determined on merits. 45. Counsel further submitted that the Respondent acted unfairly and in a discriminatory manner by keeping the Claimant’s application pending indefinitely without completing the alleged investigations or communicating a final decision. It was argued that the Respondent failed to comply with the constitutional spirit of fairness, equality, and fair administrative action under ***Articles 27 and 47 of the Constitution***. The Respondent’s conduct was said to have left the Claimant in uncertainty while denying him an opportunity to seek alternative employment. 46. Counsel cited the decision in ***Opiyo v Bedrock Holdings (Cotec Security Group Ltd) [2025] KEELRC 1697 (KLR)*** in arguing that the circumstances surrounding expiry of a fixed-term contract may render termination unfair. Counsel also cited ***Kenya Revenue Authority v Export Trading Company Limited [2022] KESC 31 (KLR)***, ***Communications Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 Others [2014] eKLR,*** and ***Transparency International Kenya v Omondi [2023] KECA 174 (KLR)*** on elements of ***legitimate expectation***. 47. Counsel urged the Court to find that the Respondent unlawfully and discriminatorily failed to renew the Claimant's contract, violated his constitutional rights and his legitimate expectation. 48. On the other hand, Counsel for the Respondent submitted that the Claimant was employed on a fixed-term contract running from 1st February 2024 to 31st January 2025, and the same expired by effluxion of time. It was argued that upon the Claimant applying for the renewal of the same, the request was considered by the UMB at its 686th meeting and declined. Consequently, it is submitted that the Claimant was not terminated but rather, his contract simply expired and lapsed and, the Respondent was under no legal obligation to renew the same. 49. Counsel submitted that under ***Section 10(3)(c) of the Employment Act***, a fixed-term contract terminates automatically upon expiry and no notice is required. Counsel cited the decision in ***Registered Trustees of the Presbyterian Church of East Africa & Another v Ruth Gathoni Ngotho-Kariuki [2017] eKLR,*** where the Court of Appeal held that an employer is under no obligation to renew a fixed-term contract unless the contract expressly provides otherwise. Counsel further cited ***Transparency International Kenya v Daniel Ndung'u [2019] eKLR*** in which the Court held that non-renewal of a fixed-term contract did not amount to unfair termination. 50. On ***legitimate expectation***, Counsel submitted that the Court of Appeal in ***Registered Trustees of the Presbyterian Church of East Africa & Another v Ruth Gathoni Ngotho-Kariuki (supra)*** held that the expiry of a fixed-term contract does not amount to dismissal or termination; that no ***legitimate expectation*** of renewal of a contract arises in the absence of clear evidence or promises by the employer; and, that an employer is not required to justify a decision not to renew a fixed-term contract. 51. On the allegation of discrimination, Counsel argued that the Claimant was not treated differently from similarly situated employees because, unlike the other employees whose contracts were renewed, he was under administrative investigations at the time the decisions on the renewal of the contracts were made. It was submitted that his circumstances were therefore substantially different, eliminating any notion of discrimination. 52. Counsel further submitted that while the Claimant's contract had been renewed three times, which was insufficient to create a ***legitimate expectation*** for further renewal. Counsel cited the decision in ***Teresa Carlo Omondi v Transparency International-Kenya [2017] eKLR***, wherein the Court held that ***legitimate expectation*** must be founded on clear and unambiguous representations made by the decision-maker with authority to renew the contract. Counsel further argued that favourable appraisal by the Claimant's immediate supervisor could not bind or override the decision of the UMB, which is vested with the authority to determine the issue of renewal of contracts. 53. In conclusion, Counsel submitted that since the Claimant's contract expired by effluxion of time, non-renewal of the same did not amount to unfair dismissal. In support of this position, Counsel cited the decisions in ***Samuel Chacha Mwita v Kenya Medical Research Institute(2014)eKLR, Margaret Ochieng v National Water & Pipeline Corporation (2014) eKLR, Rajab Barasa & Others v Kenya Meat Commission [2021] KEELRC 1439 (KLR)*** and, ***Bernard Wanjohi Muriuki v Kirinyaga Water & Sanitation Company & another [2012] KEELRC 4 (KLR),*** all of which affirmed that fixed-term contracts expire automatically and employers retain the discretion on whether to renew them, but under no obligation to give reasons for declining renewal. 54. **ISSUES FOR DETERMINATION** 55. The court has carefully and dutifully gone through the pleadings filed, the documentary and oral evidence tendered by the parties, and the written submissions by their respective counsel. The following issues are for determination – 56. ***Whether the Respondent’s refusal to renew the Claimant’s contract was unfair, discriminatory, and unlawful.*** 57. ***If (a) above is in the affirmative, whether the Claimant is entitled to the reliefs sought.*** 58. ***Costs.*** 59. **RENEWAL OF CONTRACT** 60. The Claimant’s last contract was as an Administrative Assistant - Grade 8 in the office of the Dean, School of Education. The contract dated 7th February 2024 was effective from 1st February 2024 to 31st January 2025 ‘*subject to appointment of a substantive holder’*. 61. The Claimant’s previous contracts dated 16th August 2021 was for a period of 6 months running from 1st August 2021 to 31st January 2022, and the other contract ran from dated 1st February 2022 to 31st July 2022. 62. The principles governing fixed-term contracts were clearly spelt out by the Court of Appeal in ***National Water Conservation & Pipeline Corporation v Mwanza [2017] KECA 797 (KLR).*** The Court stated as follows –“**The general principle, as we understand it, is that a fixed-term contract will terminate on the sunset date unless it is extended in terms stated in the contract. A court cannot rewrite the terms of a contract freely entered into between the parties. Once there is a written contract, the court will seek to give meaning to such contract, giving ordinary meaning to its terms in determining any issue that may arise.”** 63. The court of Appeal further stated that – “***Was there legitimate expectation by the employee for renewal? The Supreme Court in the Communications Commission of Kenya case (supra) extensively analysed the principle of legitimate expectation in comparative fashion before summarizing it 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.”*** 64. Further the Court stated that – ‘***She knew she would have to await the decision of the BOD as the contract was not automatically renewable and the terms of it said so. She did not work past the end of the contract as erroneously stated by the trial court. How would it then turn out that she expected the contract to be automatically renewed? An expectation to be actionable ought to be legitimate, and in our view there was no ‘express, clear and unambiguous’ promise by the corporation in this case that the contract would be automatically renewed once the employee so requested. We also find no legitimate expectation that the employee would be given the reasons for non-extension of a fixed term contract as there was no obligation on the part of the corporation to give any.’*** 65. This court agrees with the reasoning above and is bound by it. The Claimant’s contract was for a fixed period of one year and no more. There was no clause for renewal, as the position was held by the Claimant awaiting the appointment of a substantive holder. RW1 testified that the position was subsequently filled. Additionally, there was no evidence adduced that the Claimant continued to working beyond the contract period as for a *legitimate expectation* for renewal to have arisen. Moreover, no obligation was demonstrated and or proved on the part of the Respondent to give reasons for non-extension or renewal of the contract. 66. Therefore, while the Claimant had worked for the Respondent for an aggregate period of over 4 years on fixed term contracts, the Respondent was not obligated to renew the Claimant’s contract or to provide a reason(s) for non-renewal. The Claimant did not prove that he had been discriminated. The contracts of the other employees allegedly retained by the Respondent were not availed in court to establish whether the terms of engagement were identical to those of the Claimant. 67. Consequently, the court finds and holds that there was no proof of violation of the Claimant’s constitutional rights. 68. The court finds that the Claimant failed to prove his case and the same is hereby dismissed. 69. **COSTS** 70. Each party shall meet own costs. 71. **DISPOSAL/ORDERS** 72. The court issues the following orders – 73. ***This cause is devoid of merit and is hereby dismissed.*** 74. ***Each party shall bear own costs.*** **DELIVERED VIRTUALLY, DATED, AND SIGNED AT KAKAMEGA THIS 30TH DAY OF JULY 2026.** **……………………** **DAVID NDERITU** **JUDGE**