Erick Mangunyi VS The Catholic University of Eastern Africa Erick Mangunyi VS The Catholic University of Eastern Africa

By a statement of claim dated 5^th August, 2021 the claimant pleaded inter alia: -
The Claimant was employed by the Respondent Organization on permanent and pensionable terms in 2005.
The Claimant rose through the ranks from Data Entry Clerk to Research Fellow. And subsequently was redeployed to the School of Business, department of Marketing and Management.in 2017 for a duration of 3 years.
In 2020, the Claimant was appointed acting head of graduate studies and subsequently confirmed to that position for a duration of 3 years which was to run out in 2023, after being positively assessed in a Job Performance Evaluation exercise.
In May 2020 the claimant applied for renewal of the teaching contract in line with the procedure of renewal of contracts which is subject to satisfactory performance.
The Respondent in November 2020, having continued to engage the services of the Applicant and pay for the said services and during the same time subjected the Applicant to a performance evaluation where the Applicant was positively assessed and even recommended for confirmation as Head of Graduate Studies, surprisingly communicated a non renewal of employment without any reasons for the same.
The Applicant exhausted all the appeal procedures having appealed to the Staffing Committee, Vice Chancellor twice, the Chairperson of University Counsel and made follow ups, without substantive response to date.
The Claimant has over the years worked diligently and honestly for the Respondent throughout the 16 years of her employment without any disciplinary case, and has been positively assessed by his supervisors and for that reason risen over the ranks.
The Respondent acted with malice in communicating the non-renewal of contract, despite having received the Claimant’s application for renewal based on his performance and his positive performance evaluation continued to pay him for his services.
The, Respondent ab initio exhibited extreme mcila fid.es, malice and discrimination aga’inst the Claimant by subjecting him to an opaque non renewal process
The Claimant prayed for orders among others that:
Reimbursement of unpaid leave and other incurred expenses arising out the negligence of the employer to date.

60,000 X 15 = 900,000.00

Payment of salary arrears, allowances and benefits/dues for the remainder of his current contractual term at CUEA envisaged to end in 2023.

145,000.00 X 12 X 6 = 10,440,000.00

Payment of annual increments for the remainder of his current contractual term at CUEA envisaged to end in 2023.
Salaries/allowances/dues for determined months being the shortfall to retirement mandatory age of 70 years.

145,000.00 X 12 X 10 = 17,400,000.00

Payment of gratuity from 2017 to 2023 being the duration of the current contract.

145,000.00 X 6 = 870,000.00

Payment of unpaid gratuity and retirement benefits after attaining * the age of 70 years.
The Claimant claims damages for loss of reputation and opportunities and interests at applicable court rates.

6,000,000.00

A declaration that the Claimant has suffered an unfair and wrongful termination of employment at the hands of the Respondent.
The Respondent filed its Statement of Response dated 23^rd November, 2022 and averred inter alia:
The Respondent admits the content of paragraph 6 of the Statement of Claim to the extent that the Claimant applied for renewal of his contract of employment. The Respondent puts the Claimant to strict proof on satisfactory performance.
In further response to paragraph 7 above the Respondent avers that the process of renewal of fixed term contract was at the Respondent’s discretion subject to among others availability of vacancy, satisfactory performance and reference to Human Resource Policy Manual.
The Respondent partly admits the contents of paragraph 7 of the Statement of Claim to the extent that it retained the Claimant on a month to month contract after the expiry of his fixed term contract on 30^th June 2020 and paid for the said services. The Respondent denies that the Claimant was positively assessed during the period in question and puts the Claimant to strict proof.
The Respondent denies the content of paragraph 8 and 9 and puts the Claimant to strict proof. Further, the Respondent avers that the appeal is currently pending before the University council and was shelved upon the filing of the instant suit.
The Respondent denies the content of paragraph 16 of the Statement of Claim and puts the Claimant to strict proof. Further, the respondent avers that the Claimant was sufficiently notified of the decision not to renew his contract in writing.
The Respondent avers that the Claimant voluntarily signed all his contract of employment and worked at the Respondent’s university wherein he was promoted to various positions during the pendency of his employment contracts.
The Respondent avers that the Claimant never complained of any malice or his terms of employment and as such has failed to demonstrate malice on the part of the Respondent.
The Respondent sponsored the Claimant to advance his studies and obtain a degree in Commerce while at the same time working for the respondent.
The Respondent avers that during the entire period of employment, it never subjected the Claimant to harsh conditions of employment, discriminated against him or disregarded his dignity.
The Respondent avers that the Claimant is being economical with the truth, deliberately misleading the court and intends to tarnish the otherwise good name of the Respondent’s University by alleging without any iota of evidence that the Respondent violated his rights as protected under the Bill of rights of the Constitution of Kenya 2010.
At the hearing the claimant testified among others that he was employed by the respondent on a permanent and pensionable basis and that he was promoted severally and enhanced his qualifications during the employment. It was his evidence that he was informed of the end of his contract and applied for extension and ordinarily expected positive feedback. He acknowledged that assessment and job evaluation was done before renewal.
It was the claimant’s evidence that he applied for renewal in June, 2020 and the letter of non-renewal came in November. The respondent continued to pay him during that period. According to the claimant, no reason was given for non-renewal yet he had expectation for renewal.
In cross-examination he confirmed that he was paid during the period of service and had written contracts which stipulated his salary. He further confirmed that the administrative positions had allowances and he was paid. On 18^th May, 2020 he received an email asking him to apply for renewal. His contract was to terminate on 30^th June, 2020. It was his evidence that he had another contract as HoD in the Graduate Business School and that he signed his contract on 23^rd September, 2020 and had no teaching contract after 30^th June, 2020 but was assigned teaching duties. Regarding leave, it was his evidence that he went on leave during the period he worked.
He was informed of the non-renewal of his teaching contract in November, 2020 and that he was familiar with the respondent’s grievance handling procedures and that he appealed to the University Council but was not aware that the appeal to Council was to be done within 7 days. He wrote his appeal to the Vice Chancellor but was advised to redirect it to the Chair of the Council which he did and was informed that he would be notified of the outcome of the appeal once the date for the hearing of the Appeal has been set. Concerning allegations of constitutional violations, it was his evidence that he provided evidence of the violations.
The respondent called one witness, one Erick Omondi Njiri who stated that he wrote a statement on 23^rd November, 2022 which he relied on as his evidence in chief. He also relied on the documents filed by the respondent as exhibits.
In cross-examination he stated that he was working for the respondent as an Human Resource Officer and had worked for the respondent for 7 years. It was his evidence that the respondent shares employment information with staff annually and that the respondent looks for potential deliverables, competence and attitude. He stated that employees are first hired on probation and that promotion for non-teaching staff was based on performance and for academic staff it was performance and publication.
According to Mr. Njiri, the claimant was evaluated and performed well. He was therefore recommended for appointment as HoD. It was his evidence that HoD was additional responsibility and that there was no evaluation for HoD and that it was nominative and rotational. The nomination was done by the Dean. As HoD the claimant was entitled to allowance and not a salary. Regarding evaluation, it was his evidence that this did not end with the employee and his supervisor as portrayed in exhibit EM 12 in the CBD. It was to be escalated to the evaluation committee. He however did not have evaluation by the committee before court. It was his evidence that HoD contract was a responsibility contract and could not stand alone. It was part of the academic contract.
Regarding the claimant’s appeal, it was his evidence that there was procedure for Appeals and that the claimant appealed properly after being advised to do so and that the date for the hearing of the appeal was not set because the claimant moved to Court.

CLAIMANTS’ SUBMISSIONS

Mr. Ajwang’ for the claimant submitted that there was no contention over the claimant’s legitimate expectation of renewal of contract after exemplary service supported by the several promotions and assigned responsibilities during the 20 year period. Counsel further submitted that earlier by a correspondence dated 7^th September, 2020 the respondent had appointed the claimant as the Head of Graduate Studies for a period of three years that could have ended in 2023. Therefore the nonrenewal letter after the appointment appeared unreasonable, irregular, malicious and discriminatory.
Counsel further submitted that the non-renewal was not based on the cessation of the position or any other reason and therefore can be deemed discriminatory. Counsel submitted that the claimant had the right to equal treatment before the law under article 27 of the constitution. On the issue of month to month contract, Counsel submitted that this was tantamount to being subjected to servitude and slavery considering that the original terms of engagement had not been changed.
Concerning payment of salary, Counsel submitted that the shortfall in the contract would be between September, 2020 and September, 2023 based on the legitimate expectation arising out of the appointment as Head of Post Graduate Studies for a period of three years. Furthermore, the respondent having in its own previous job performance evaluation scored the applicant favourably.

RESPONDENT’S SUBMISSIONS

The respondent filed submissions on 17^th January, 2025 and submitted in the main that the claimant’s claim was premature for failure to exhaust internal dispute/grievance resolution mechanisms. According to counsel, where such internal processes exist, they must be exhausted before a party approaches the court for reliefs. Mr. Situma relied on clause 1.11 (vii) of the respondent’s Human Resources Policies and Procedures Manual. (p83 RBD). Counsel further relied on the case of Speaker of National Assembly v Karume [2008] 1 KLR (EP), 425. Counsel further submitted that the claimant had not demonstrated exceptional circumstances to warrant bypassing of the internal dispute resolution mechanisms. In this regard, counsel relied on the case of Fleur Investment Ltd v Commissioner of Domestic Taxes & Anor [2018] eKlr.
On the issue of unfairness and breach of natural justice, Counsel submitted that there was nothing to suggest that the decision by the respondent not to renew his fixed term contract of employment was actuated by malice.
On the issue of violation of constitutional rights and fundamental freedoms, Counsel submitted that despite pleading a litany of constitutional violations, the claimant had not done so with the required specificity and demonstrate by cogent evidence the manner in which the said fundamental rights had been violated. Furthermore, no evidence was led in the claimant’s testimony in court about these alleged violations. In this regard Counsel relied on the case of R. v. Anarita Karimi Jeru [1979] eKLR that a party who wishes to file a constitutional reference claim must plead with precision, the provision of the constitution which he alleges to have been violated and in what manner it has been violated. Counsel further relied on the case of Gabriel Mutava & 2 Others vs. MD Kenya Ports Authority & Anor [2016]eKLR where it was stated that a party ought not to trivialize the jurisdiction of the constitutional court by bringing actions that could very well be effectively be dealt with in that other forum.
On whether legitimate expectation is applicable to fixed term contracts, counsel submitted that the claimant had not established a justified claim for legitimate expectation. In this regard counsel relied on the discussion on legitimate expectation as presented by H.W.R Wade & C.F Forsyth on Administrative Law thus:

“…it is not enough that expectation should exist, it must in addition be legitimate. for the expectation to be legitimate, it must be founded upon a promise or practice by a public authority that is bound to fulfil the expectation…clear statutory words, override an expectation howsoever founded… an expectation whose fulfilment requires that a decision maker should make an unlawful decision cannot be a legitimate expectation…the expectation must be within the powers of the decision maker before any question arises…”

Counsel further drew the Court’s attention to the case of Communications Commission of Kenya & 5 Others v Royal Media Services & 5 others [2014]eKLR and the case of Trocaire v Catherine Wambui Karuno [2018]eKLR.
On the issue whether the claimant is entitled to the reliefs sought, counsel submitted that the claimant’s contract ended by effluxion of time and his application for renewal was considered but was unsuccessful. Although the claimant continued to work, he was later informed that his contract would not be renewed. Counsel submitted that the claimant’s service after the expiry of his contract became on month to month basis. According to counsel, the claimant had not established a case for grant of the orders sought.
Mr. Situma further submitted that prayers as framed by the claimant could not issue as they were not merited. Further the claimant did not plead for compensation but merely sought declaration.

DETERMINATION

I have reviewed and considered the pleadings and submissions by the Claimant’s and Respondent’s counsels in support of the case as well as authorities relied on and became of the view that the gist of the claim before me is over the non-renewal of the claimant’s fixed term contract. The contract in issue was to run for three years from 1^st July, 2017 to 30^th June, 2020. The claimant by a letter dated 18^th May, 2020 applied for the renewal of the contract. While awaiting the respondent’s response thereon, the respondent by a letter dated 7^th September, 2020 appointed the claimant as the Head of Graduate Studies for a period of three years. The position attracted a responsibility allowance and not a salary but required, as stated in the letter, the claimant’s commitment to duty and further required him to be proactive, relentless and reliable. By a letter dated 9^th November, 2020, the respondent replied to the claimant’s request for the renewal of his contract informing him that the request had been unsuccessful. The letter while acknowledging that the claimant had since the expiry of his 3 year contract in June, 2020, had been serving on a month to month basis, proceeded to give him three months’ notice of termination of contract to enable him handover. The claimant appealed against this decision but from the evidence on record, the appeal was put pending by the respondent when the claimant commenced this suit. The respondent’s counsel had submitted elaborately on this aspect however from the record, no application was made to stay the suit to allow for exhaustion of the internal processes. In any event the respondent acquiesced to the suit by not acting on the appeal until the suit is decided by the Court.
It is trite law, and both Counsel have very ably submitted that there is no obligation to renew a fixed term contract upon expiry and failure or decision not to renew does not amount to unfair termination. However this is the general principle of law and like any other, there are exceptions. Situations will arise in a fixed term contractual relationship that would cry for a renewal as the only just thing to do in the circumstances. These situations are what creates legitimate expectation for a renewal.
Th This Court and the Courts above it have delved into the principle of legitimate expectation and discussed it in a number of cases some of which have been cited by Counsel in support of their submissions. It is a doctrine of administrative law recognized as early as in the English case of In re Westminster City Council,[1986] A.C. 668 at 692 where Lord Bridge stated:

“…the courts have developed a relatively novel doctrine in public law that a duty of consultation may arise from a legitimate expectation…aroused either by a promise or by an established practice of consultation”…In proceedings for judicial review, legitimate expectation applies the principles of fairness and reasonableness, to the situation in which a person has an expectation, or interest in a public body retaining a long-standing practice, or keeping a promise.

In employment matters especially on renewal of fixed term contracts, the Court (Rika J) in the case of Teresa Carlo Omondi vs Transparency International Kenya [2017] eKLR- observed concerning legitimate expectation thus;

“The burden of proof, in legitimate expectation claims, is always on the Employee. It must be shown that the Employer, through regular practice, or through an express promise, leads the Employee to legitimately expect there would be renewal. The expectation becomes legally protected, and ought not to be ignored by the Employer, when managerial prerogative on the subject is exercised. Legitimate expectation is not the same thing as anticipation, desire or hope. It is a principle based on a right, grounded on the larger principles of reasonableness and fair dealing between Employers and Employees. The Employee must demonstrate some rational and objective reason, for her expectation. The representation underlying the expectation must be clear and unambiguous. The expectation must be induced by the decision maker. The decision maker must have the authority to renew. Repeated renewals, extended service beyond the period provided for in the fixed term contract, and promise of renewal, are some of the elements that would amount to objective reasons underlying expectation of renewal. The presence of these elements however, is not to be taken as conclusive proof of legitimate expectation.

The learned judge has so succinctly put the concept of legitimate expectation and the circumstances under which it applies that I have nothing useful to add save to see if it does or not apply in the matter before me. It was not in dispute that the claimant was hired on a 3 year fixed term contract sometime in July, 2017. This contract was to expire on or about 30^th of June, 2020. By a letter dated 18^th May, 2020, the claimant requested for renewal of his contract to which the respondent did not reply immediately. Instead by a letter dated 7^th September, 2020, the respondent appointed the claimant as the Head of Graduate Studies for a period of three years. This position attracted a responsibility allowance and not a salary but required, as stated in the letter, the claimant’s commitment to duty and further required him to be proactive, relentless and reliable.
The respondent has contended that the position of Head of Graduate Studies is a responsibility position which only attracted an allowance and not a salary and that the position of Lecturer Department of Marketing and Management, School of Business which the claimant held on a 3 year fixed term contract was a salaried position. As observed earlier, the Court is in agreement with Counsel for the parties on their submissions on the law and principles governing fixed term contracts that is to say mainly that there is no obligation to renew. However, the Court has equally observed that this is a general principle of the law and like any other, there are exceptions. Situations will arise in a fixed term contractual relationship that would cry for a renewal as the only just thing to do in the circumstances. These situations are what creates legitimate expectation for a renewal.
This Court takes the view that it beat logic for the respondent to have appointed the claimant to the position of the Head of Graduate Studies for a period of three years when the “mother” position, the basis upon which he could be appointed to a position of responsibility, still remained in a balance. The claimant promptly responded to the request by HR that he and his colleagues whose contracts were nearing expiry should apply for renewal. One wonders why in the same spirit, if the respondent had made up its mind that it would not renew the claimant’s contract, tell him so instead of asking him to apply for a renewal. Worse still offer him a responsibility position for three years without a substantive contract.
To the above extent, this Court finds and holds that the conduct of the respondent especially the act of appointing the claimant to a responsibility position for three year without a substantive contract, created a legitimate expectation that his substantive contract which had expired would be renewed. Failure or refusal to renew the same amounted to unfair termination of contract and unfair labour practice. The claimant was misled into believing that his contract over which he had applied for renewal had actually been renewed as a basis for his appointment to Head of Graduate Studies for a period of three years. The argument that his subsequent service after expiry of his initial contract was on monthly terms, was a significant departure from the way the parties have related over the years and not only needed the claimant to be consulted but also required to be documented. No such evidence was produced by the respondent before the Court.
From the foregoing the Court deems the claimant’s three year contract which expired around 30^th June, 2020 to have been renewed but unfairly terminated by the respondent’s letter dated 9^th November, 2020 informing him of non-renewal of the same.
Considering the long time the claimant had served the respondent and the respondent not having assigned any valid reason for the unfair termination of his contract and further not having taken the claimant through a fair procedure before termination, a maximum award of 12 months’ salary as compensation is justifiable in the circumstances.
The Court has considered other heads of claim such as claim for salary until retirement at 70 years and claim for unpaid leave, salary for the remainder of his contract, damages for loss of reputation and damages for discrimination. Concerning salary until retirement at 70, this claim is unsustainable because the claimant was hired on fixed term contract and there was no guarantee he would work until retirement at 70 years. The claim for the balance of his contract would be disallowed because the contract could prematurely be terminated by either party for good reason or brought to an end through vagaries of life such as death. The claim for unpaid leave will also be rejected since the claimant in his evidence did not sufficiently prove this claim.
Concerning claims under the Constitution and Fair Administrative Action Act such as discrimination, the Court will rely on the Supreme Court’s decision in Communication Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 others where the Court stated

“…that the principle of avoidance means that a Court will not determine a constitutional issue when a matter may properly be decided on another basis…”

Further in the case of Sports and Recreation Commission v Sagittarius Wrestling Club and Anor [2001][2]ZLR501 per Ebrahim JA

“…Courts will not normally consider as a constitutional question unless the existence of a remedy depends upon it; if a remedy is available to an applicant under some other legislative provision or on some other basis, whether legal or factual, a court will usually decline to determine whether there has been, in addition, a breach of the Declaration of Rights..”

In conclusion the Court finds and holds that:
1. the claimant’s claim is merited to the extent that he had legitimate expectation of the renewal of his contract as a Lecturer, Department of Marketing and Management, School of Business for another 3 years.
2. The contract was deemed renewed upon expiry when the respondent retained the claimant’s service and appointed him as Head of Graduate Studies with effect from 7th September, 2020 for a period of three years.
3. The respondent’s letter dated 9th November, 2020 informing the claimant of non-renewal of his contract amounted to unfair termination of employment.
4. Judgment is hereby entered for Kshs.1,740,000/- in favour of the claimant against the respondent, being 12 months’ salary (Kshs. 145,000 x 12) as compensation for unfair termination of service.
5. Item (iv) above shall be subject to taxes and statutory deductions but shall accrue interest at Court rates from the date of the judgment until payment if full.
6. The claimant shall have costs of the suit.
It is so ordered.

Dated at Nairobi this ……… day of…………. 2025

Delivered virtually this……… day of ………….2025

Abuodha Nelson Jorum

Presiding Judge-Appeals Division