Wamukota v Kenya Electricity Transmission Company Limited (Employment and Labour Relations Petition E212 of 2026) [2026] KEELRC 2009 (KLR) (14 July 2026) (Ruling)

Wamukota v Kenya Electricity Transmission Company Limited (Employment and Labour Relations Petition E212 of 2026) [2026] KEELRC 2009 (KLR) (14 July 2026) (Ruling) Neutral citation: [2026] KEELRC 2009 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Employment and Labour Relations Petition E212 of 2026 JK Gakeri, J July 14, 2026 Between Eng Antony Tawayi Wamukota Petitioner and Kenya Electricity Transmission Company Limited Respondent Ruling 1.The Petitioner/Applicant filed the instant petition on 24th June, 2026 together with a Notice of Motion of even date under Certificate of Urgency seeking orders that:1.Spent.2.Spent.3.Spent.4.Pending the hearing and determination of this petition, an order be issued requiring the Board of Kenya Electricity Transmission Co. Ltd (KETRACO) to consider the Managing Directors appraisal of the Petitioners employment for the year 2021-2025 in its decision to consider the Petitioner’s request dated 15th September 2025 to renew the contract of employment as General Manager Design and Construction.5.Pending the hearing and determination of this Petition, an order be issued that the petitioner continues to serve as Kenya Electricity Transmission Company Ltd’s General Manager Design and Construction pending a decision of the Board of Directors under Clause 2 of the Contract of Employment dated 5th July, 2021. 2.The application is expressed under various Rules of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules and Article 165 (1) of the Constitution of Kenya and is based on the grounds enumerated on its face and the Supporting Affidavit of the Applicant. 3.The applicant’s case is that he joined the Respondent as General Manager Design and Construction on 5th July 2021 under a 5-year contract and Clause 2 of the contract provided for renewal of the contract for further 5 years subject to satisfactory performance or retirement age and the applicant applied for renewal vide letter dated 15th September 2025 and the Managing Director acknowledged his impressive performance vide letter dated 16th September 2025. 4.The renewal request was not presented to the Respondent’s Board of Directors for consideration but the Board of Director dismissed the Managing Director on 20th September, 2025 and appointed an acting Managing Director. 5.That the High Court suspended the Board of Directors of the Respondent and all Board resolutions made from 29th May 2026 among them those one dated 3rd June 2026 informing the applicant that his contract with the Respondent would not be renewed. 6.When the matter came up for directions on 26th June 2026 the court granted prayer No. 2 of the Notice of Motion pending inter partes hearing of the application. During inter partes hearing it came to ligat that (i) Board of Directors had already passed a resolution not to renew the applicant’s contract of employment but it was stayed by the High Court in Petition No. E316 of 2026 and reconstitution of the Board of Directors stayed (ii) In Kisumu ELRC Petition No. E33 of 2026, filed on 16th June 2026 the court issued an order restraining the Respondent’s Board of Directors from reinstating, appointing the applicant and the order served on 18th June 2026 and the instant suit was filed shortly thereafter. Both counsels were in agreement that the two suits be consolidated and heard in Kisumu since the suit was filed first. Respondent’s case 7.By a Replying Affidavit sworn by Engineer Kipkemoi Kibias on 7th July 2026, the affiant deponed that renewal of employment contracts was the mandate of the Respondent’s Board of Directors and renewal depended on satisfactory appraisal ratings and other personal attributes not limited to teamwork, honesty, presentation and time management. 8.The affiant deponed that the petitioner’s renewal application was presented in May 2026 and the accompanying documents were missing from the official record and files in his custody. 9.That the former Managing Director, Dr. Engineer John Muoki Mativo could only clarify the issue on a ‘without prejudice’ basis on email. 10.That the Respondent’s Board of Directors considered the petitioners application wholistically bearing in mind that he was subject to investigation by the EACC and had been arrested on 23rd March 2023 and his petition against the EACC was dismissed by the High Court and consequently suspended from office by the Managing Director. 11.That in 2023 the Respondent had invited tenders for long-haul Transport Services and heavy duty handling equipment and Elsogom Ltd won the tender of Kshs.9,538,500 conditional on acceptance and execution of contract but the petitioner approved a memo authorizing officers to proceed to Mombasa to supervise the loading of transformers for the Kitale-Ortum Transmission Line Project and the company undertook loading without a fully executed contract violating the provisions of the Public Procurement and Asset Disposal Act (PPAD). 12.That the petitioner was issued with a notice to show cause was heard and finally cautioned vide letter dated 7th June 2024. 13.That pursuant to a PSC directive the Respondent placed the petitioner on compulsory leave pending completion of a comprehensive Forensic inquiring into the procurement and the petitioner sued and won the case in ELRC Petition No. E485 of 2025. 14.The affiant further deponed that the Auditor General’s Report for the financial year ended 30th June 2023 raised issues on project implementation, governance and procurement including deficiency in the implementation of capital infrastructure project’s under the petitioner’s Directorate and the sum of Kshs.85,707,164.00 had been incurred as container Freight station storage of two (2) transformers for the Kitale-Ortum Transmission Line Project since 2016 and other transmission projects had stalled for instance, Gilgil-Thika-Nairobi Loiyangalani-Marsabit 4000 KV of Kshs.2,665,000,000 and the Garsen-Hola-Bura-Garissa Single Circuit Transmission line project which stalled at 51% completion with an outstanding claim of Kshs.177,207,639 with no completion strategy, thus no value for money could be discerned other projects were also spot lightened by Auditor General such as Sondu-Homabay-Awendo Electrification Project, Rabai-New Bamburi- Kilifi and New Bamburi-Bamburi Cement Power Generation and Evacuation Project, Sultan-Hamud-Loitoktok and Awendo-Isebania transmission line the Mariakani component of the Kenya-Ethiopia Electricity Highway Project and Nanyuki-Isiolo Overhead Transmission Project among others, that value for money could not be established or verified. 15.That on the basis on the foregoing at its meeting of 3rd June 2026, the Respondent’s Board of Directors considered the Petitioner’s request for renewal of contract and resolved not to renew it on expiry on 4th July 2026 and the Petitioner was notified vide letter dated 4th June 2026. 16.The affiant further deponed that High Court Petition No. 6356 of 2026 suspended the resolutions of the Board of directors from 29th May 2026 and the ELRC Kisumu issued orders on 16th June 2026 restraining the Respondent’s Board of Directors from renewing or extending the Petitioner’s contract in ELRC Pet No. E033 of 2026 orders which were binding on 24th June when the instant suit was instituted and were extended on 29th June 2026 and were served on the Petitioner, a fact not disclosed to the Court. 17.The affiant deponed that full and frank disclosure in ex parte proceedings was unyielding, absolute and non-derogable and extended to all material facts and at breach thereof leads to the discharge of any orders obtained thereunder. 18.That the petitioner sought an order to compel conduct restrained by a subsisting order and the order issued on 26th June 2026 was in collision with a previous order by the ELRC Kisumu and the petitioner was forum shopping and the court should set a side the ex parte order and strike out the Notice of Motion dated 24th June 2026. 19.The affiant deponed that after setting aside the ex parte, the court should consider whether the instant suit ought to be sustained in light of prior and subsisting proceedings and conservatory order touching on the dispute. 20.That the Respondent had filed an application to have the ex parte order discharged. Respondent’s Submissions 21.As to whether the Petitioner’s Notice of Motion could withstand judicial scrutiny and be sustained on merits, counsel urged that the Petitioner was seeking to dictate the parameters to be considered in a renewal of employment as well continued employment pending the process of renewal of the contract of employment matters the Kisumu court preserved and the board of directors of the Respondent resolved not to renew the contract and a decision communicated to the petitioner. 22.Counsel, further submitted that in Constitutional Petition No. E. 356 of 2026 Issa Elanyi Chamao & 2 others v The Cabinet Secretary, Ministry of Energy & Petroleum & 7 others, the court issued conservatory orders suspending inter alia Gazatte Notices reconstituting the Respondent’s Board of directors and thus there was no board to implement the orders sought. 23.On consolidation with KISUMU ELRC PET E033 of 2026 reliance was placed on Rapid Kate Services Ltd v Freight Forwarders Kenya Ltd & 2 others (2005) KEHC 221 (KLR) for the proposition that proceedings should be placed before the forum best suited to determine them having regard to the nature of the dispute, interests of the parties and efficient administration of justice. 24.Counsel urged that consolidation would prevent parallel adjudication, avert conflicting commands and allow the dispute to be determined upon a complete record before a single forum. 25.It is not in dispute that Petitioner/Applicant was employed by the Respondent as the General Manager Design & Construction from 5th July 2021 under a five (5) year fixed term contract scheduled to lapse and lapsed on 4th July 2026. 26.The Petitioner was entitled to gratuity at 31% of the basic salary, Allowances such as commuter, entertainment, utility, responsibility and house allowance. 27.It is also not in dispute that the petitioner’s performance appraisal form on record related to the period 1st July 2023 to 30th June 2024 and the Petitioners rating by the supervisor was very good. However, the acting Managing Director of the Respondent deponed that the Respondent had no record of the renewal application date 15th September 2025 and only learnt of it in May, 2026. 28.Relatedly, the Ag Managing Director deponed that the petitioner was subjected to disciplinary proceedings and cautioned on account of non-compliance with the of the Public Procurement and Asset Disposal Act, and remained a subject of investigation by the EACC and had been interdicted by the board of directors which was overturned by the court. 29.When the matter came up for hearing of the application on 2nd July 2026 Mr. Peter Wanyama, Counsel for the Petitioner/Applicant prayed for orders 2 and 3 of the Notice of Motion application acknowledging that prayer No. 2 was granted at the ex parte stage pending inter partes hearing. 30.Counsel justified his application on the premises that the Petitioner/Applicant sought renewal of his employment in September 2025 and it was due for consideration by the Respondent’s Board of directors in the 2nd Quarter and his appraisal by the supervisor was annexed. 31.Counsel submitted that some unnamed powerful people had sought to push out the Petitioner/Applicant but he won the case. 32.Counsel submitted that the Respondent’s Board was not properly constituted and the Petitioner/Applicant’s contract of employment was due to expire on 4th July 2026. 33.Counsel indicated that prayer No.3 would enable the Petitioner/Applicant remain in employment by dint of a court order pending the of his application for renewal of contract of employment and the respondent stood to suffer no loss. 34.Mr. Mumia for the Respondent informed the court that the Board of directors had considered the petitioner’s request for renewal and made a decision not to renew it. 35.Counsel stated that High Court Petition E356 of 2026 was filed at the Constitutional Division and orders were obtained staying the resolution of the Board which had already been executed. The order also stayed reconstitution of the Respondent’s Board of directors. 36.Counsel informed the court that KISUMU ELRC PET No. E033 Eugene Owino v KETRACO was filed in Kisumu on 16th June 2026 and conservatory orders issued restraining the Respondent’s Board of directors from renewing, re-appointing reinstating or retaining the Petitioner/Applicant in employment and the Petition was served on 17th June 2026 and the order communicated to the Petitioner but the Petitioner instructed counsel on 18th June 2026 and at 1152 am a petition was filed seeking orders for the petitioner to remain in office but the court declined to grant interim orders and inter partes hearing but the petition was withdrawn allegedly because of an error. 37.Counsel provided no verifiable evidence to establish the submission. 38.Counsel stated that when the petitioner filed the instant petition and motion on 26th June 2026, he was lucky and secured interim orders for the Respondent’s Board of directors to consider the petitioner’s appraisal for purposes of renewal of the contract of employment. 39.Counsel informed the court that on 29th June 2026, counsel for the Petitioner/Applicant informed the court that his client was served with the orders of the Kisumu court on 20th June 2026 and moved to court while aware of the orders, a fact he did not disclose to the court to avoid conflicting orders as it would embarrasses the court as it had already done. 40.Counsel informed the court that he had filed an application to have the interim orders set aside and the instant Notice of Motion be struck out for failure to disclose Counsel urged that non-disclosure at the ex parte stage rendered the orders issued unsustainable and the court ought not to grant orders conflicting with those in ELRC KISUMU PET E033 of 2016. 41.In a rejoinder Mr. Peter Wanyama raised the issue of ethnicity at the Respondent’s without substantiating the same. According to him his client was regarded as an outsider, that confidential Board of director documents were used to file KISUMU ELRC PET No. E033 of 2026 and the instant suit was filed later. 42.Counsel contended that since the High Court suspended the Respondent’s Board of directors and a new board was being reconstituted;i.The two files ought to be consolidated and heard in one place.ii.Status quo be maintained pending the hearing and determination of the application and petition. 43.Mr Mumia for the Respondent was in agreement with the proposal that the files be consolidated but was opposed to any orders being made and raised the issue of non-disclosure again which counsel for the Petitioner/Applicant did not take land. 44.The court accorded counsels 3 days to file responses for the two applications with right of reply and file and exchange submissions 3 days a piece with a ruling on 14th July 2026. No other orders were granted. 45.The Petitioner/Applicant seeks two orders pending the hearing and determination of the Petition. The singular issue for determination is whether prayer No. 4 No. 5 of the Petitioner/Applicant’s Notice of Motion dated 24th June 2026 are merited. 46.Needless to underline, Prayer No. 4 of the Notice of Motion is framed in the same tenor as prayer No. 2, which the court granted at the ex parte stage and which the Respondent successfully contested by its Notice of Motion dated 1st July 2026 on account of non-disclosure of material facts. 47.Having vacated the order on valid grounds, the court is not persuaded that there is need to assess and determine its availability once again at this stage. 48.The reasoning is that had the orders made by Hon Justice Nzioki Wa Makau in KISUMU ELRC PET No. E033 of 2026 on 16th June 2026 been disclosed to the court, the court would obviously not have granted interim orders as it did. 49.The straight forward explanation is that the order issued on 26th June 2026 conflicts with the orders of Hon. Justice Nzioki Wa Makau which is embarrassing to the court. 50.Prayer number 5 seeks an order that the Petitioner/Applicant continues to serve as the General Manager, Design and Construction of the Respondent pending the boards decision of the Petitioner/Applicant’ss application for renewal of the contract of employment under clause 2 of the contract of employment dated 5th July 2021 which provides: 51.This is a five (5) year contract only designated on the company’s salary Grade KET 2 renewable once subject to satisfactory performance and attainment of the mandatory retirement age, whichever comes first” 52.The Respondents Human Resource Policy and Procedures Manual June 2019 prescribes the renewal process and the attendant parameters. Paragraph 26 of the Manual; provides for the Notice of renewal to be forwarded to the Managing Director or the Board of Directors in the case of the Managing Director and the basis of renewal or termination of a contract. 53.Although the Petitioner/Applicant averred that he gave notice of renewal to the then Managing Director who promised that it would be considered by the Board of directors in the 2nd Quarter, Engineer Kipkemoi Kibias deponed that no application for renewal of contract was brought at his attention when he took over on 19th September 2025 or formed part of the record handed over and only saw it in May 2026 and the board of directors resolved not to renew it on 3rd June 2026 and the resolution subsequently was stayed by the High Court in a pending suit. 54.The factual matrix is further complicated by the fact that the Respondent has no board of directors and the Petitioner/Applicants contract of employment has lapsed, thus there is no relationship between the Petitioner/Applicant and the respondent. 55.The jurisprudence on fixed term contracts is as enunciated by the Court of Appeal in Registered Trustees of the Presbyterian Church of East Africa & another v Ruth Gathoni Ngotho (2017) eKLR, that afixed term contract carries no rights, obligations or expectations beyond the date of expiry, Francis Chire Chachi v Amatsi Water Service Co. Ltd (2012) eKLR, that employers are not obligated to give employees reasons for non-renewal of a fixed term contract unless the contract so requires, Registered Trustee De la Salle Christian Brothers T/A St Mary’s Boys Secondary School v Julius D.M Baini (2017) eKLR, for the proposition that reasons, beyond effluxion of time are not necessary in termination of fixed term contracts. 56.Finally, in Transparency International -Kenya v Teresa Carlo Omondi (2023) KECA 174 (KLR), the Court of Appeal agreed with the sentiments in previous cases and paraphrased the sentiments of Rika J in Margaret A Ochieng v National Water Conservation & Pipeline Corporation (2014) EKR as follows:“…We dare say that an automatically renewable fixed term contract is a contradiction in terms as it would subject the parties to an indeterminate employment contract… whether a contract with a renewal clause will be extended or not is an issue that is at the discretion of the employer and it cannot create a legal right under the doctrine of legitimate expectation.” 57.Because there is no employment relationship between Petitioner/Applicant and the respondent, granting the order that he continues serving as the General Manager, Design & Construction of the Respondent, would be tantamount to a reinstatement, which a substantive remedy under Section 12(3) (vi) of the Employment and Labour Relations Court Act read with the provisions of Section 49 (3) of the Employment Act. 58.The principles that govern reinstatement before hearing are well settled. It cannot be granted ex parte under (Rule 53 of the Employment and Labour Relations Court (Procedure) Rules, 2024 and can only be granted at the interlocutory stage in exceptional circumstance. This is because it is a final relief and thus inreversible.See Ahmai Aden Hire v Natif Jama & County Government of Garissa Pet. No. 121 of 2016, Anthony Omari Ongera v Teachers Service Commission (2017) KEELRC 1251 (KLR).Joab Mehta Oudia v Coffee Development Board of Trustees (2014) KEELRC 698 (KLR).See also Loice Mutai v Kenya Revenue Authority (2017) EKLR Erastus Chege Mwangi v Kenya Railways Corporation (2020) KEELRC 491 (KLR). 59.In the end, the Court finds that the Petitioner/Applicant has failed to make a sustainable case for the grant of the orders sought.Parties shall bear own costs. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 14TH JULY, 2026.DR. JACOB GAKERIJUDGEORDERIn view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.DR. JACOB GAKERIJUDGE