REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
PETITION NO. E007 OF 2026
(Before Hon. Justice Dr. Jacob Gakeri)
PETER MUNGAI NJENGA………………………………..PETITIONER
VERSUS
MINISTRY OF YOUTH AFFAIRS, CREATIVE ECONOMY & SPORTS…………………………….……………………..1 ST RESPONDENT
WORLD RALLY CHAMPIONSHIP (WRC) SAFARI RALLY KENYA………………………………………………………2 ND RESPONDENT
THE HON. ATTORNEY GENERAL……………………3 RD RESPONDENT
JUDGMENT
The Petitioner commenced this Petition on 12 th January 2026 alleging that the Respondents had violated his Constitutional rights to fair labour practices, social economic rights and right to fair administrative action.
The Petitioner’s case is that vide letter dated 25 th June 2019, he was employed by the World Safari Rally Project at a consolidated salary of Kshs.178,320.00 effective 1 st November 2017 and was also appointed as a member of the Organizing Committee of the WRC Safari Rally Project vide Gazette Notice No. 12089 of 2017 of 23 rd November 2017 by the Cabinet Secretary, Sports Culture and the Arts.
Subsequently, the Ministry of Youth affairs for 3 years but resigned on 27 th June 2019.
That he served diligently and his salary increased to Kshs.209,900.00 and the contract renewed from 1 st November 2021 to 31 st October 2022, from 1 st November 2022 to 31 st December 2022 and finally from 1 st January 2023 to 31 st August 2023.
The Petitioner averred that after 31 st August 2023, he continued rendering services as the WRC Safari Rally Project was still active and operational with no renewal of the contract of employment and thus remained in employment pending issuance of a notice of renewal but his employment was abruptly terminated on 3 rd January 2024 by the 2 nd Respondent without Notice.
The Petitioner averred that he had a legitimate expectation that his contract would be renewed and notice of termination was given.
The Petitioner prays for:
(i) Declaration that termination of his employment was unfair and unlawful
(ii) Twelve (12) months compensation Kshs.2,518,800.00
(iii) Salary arrears from August 2023 to December 2023 Kshs.1,049,500
(iv) Gratuity Kshs.2,260,737.00
(v) Salary in lieu of notice Kshs.209,900
(vi) Untaken leave days Kshs.734,650.00
(vii) Sitting allowance for the duration served as member of the WRC Safari Rally organizing Committee 1 st November 2017 -27 th June 2019
(viii) Costs of the suit
(ix) Interest on (ii) to (vii) above at court rates from date of filing the suit.
(x) Certificate of service
(xi) Any other or further relief that the Honourable court may deem fit and just to grant.
Respondent’s case
Vide a Replying Affidavit sworn in opposition to the petition on 10 th February 2026, Mr. Dennis Kinyua deponed that he was the Director of Human Resource Management of the 2 nd Respondent.
The affiant admitted that the Petitioner was their employee under several fixed term contracts and denied that the Respondents terminated his employment abruptly as the fixed term contracts were not automatically renewable but dependent on availability of funds and budgetary allocation and on expiry of the last contract, the Respondents were under no obligation to issue a notice of termination.
That vide Gazette Notice No. 1769 dated 16 th February 2024, the Cabinet Secretary was mandated to constitute the WRC Safari Rally Kenya Secretariat, pursuant to new appointment letters and the petitioner’s name was not included.
The affiant deponed that all salaries and dues payable to the petitioner during the contract period were fully paid and none was outstanding the contracts did not provide for gratuity and the petitioner was a member of the National Social Security Fund (NSSF) and had no leave application was made or denied and the suit was for dismissal with costs.
By a Further Affidavit, sworn on 24 th March 2026, the Petitioner averred that he performed duties beyond expiry of his contract on 31 st August 2023 pending formal renewal of the contract as was the practice and emails and correspondence corroborated that fact and the project was funded by the Government of Kenya and sponsors and the Project remained operational after 2023.
Petitioner’s submissions
On violations of the Constitution of Kenya, provisions of the Employment Act and Fair Administrative Action Act, counsel relied on the decisions in The German School Society & another Vohany & another (2023) KECA 894 (KLR) on the elements of fair termination of employment, the decision in Pius Machafu Isindu v Lavington Security Guards Ltd (2017) KECA 255 (KLR) on the same and the decision in Kamendi v Kenya Breweries Ltd (2023) KECA 1210 (KLR) on the requirement of the valid reason(s) for termination of employment, to submit that the Respondents did not issue the Petitioner with a notice to show cause or letter of termination of employment or notice of non-renewal of contract and could not purport to rely on the fixed term contract.
Counsel urged the court to find that termination of the Petitioner’s employment was unfair within the meaning of Section 45 of the Deployment Act.
On procedural fairness, counsel cited the decisions in Geoffrey Gikonyo Mathu v Intex Construction Co Ltd (2017) KECA 688 (KLR) and Postal Corporation of Kenya v Andrew K. Tanui (2019) eKLR on the elements of procedural fairness under section 41 of the Employment Act.
Also cited on fair hearing was the decision in Gichuru v Package Insurance Brokers Ltd (2021) KESC 12 (KLR) .
On violation of Article 47 of the Constitution of Kenya, reliance was placed on the decision in Cargill Kenya Ltd v Mwaka & 3 others (2021) KECA 115 (KLR).
On legitimate expectation, reliance was placed on the decision in Communication Commission of Kenya & 5 others v Royal Media Services & 5 others (2014) eKLR on the ingredients of legitimate expectation such as promise or practice by a public authority to urge that the Respondents had a practice that contracts would be renewed seamlessly over the years whenever the project was on going and the Petitioner expected renewal of the contract and no non-renewal notice was issued yet one was issued to a colleague on 29 th April 2026.
Reliance was also placed on decisions in Keen Kleeners Ltd v Kenya Plantation & Agricultural Workers Union (2021) KECA 352 (KLR) on practice as was the decision in Christopher Shabiri Changalwa v Unga Ltd Cause No. 259 of 2017. Decisions in Attorney General v Kituo Cha Sheria & 7 others (2017) KECA 773 (KLR) and Kenya County Government Workers Union v County Government of Nyeri & another (2015) KEELRC 100 (KLR) were cited to urge that the Respondents violated the Petitioner’s right to human dignity. Counsel, further submitted that Respondents violated the Petitioner’s social economic rights by not paying his salary for four (4) months.
On reliefs, counsel submitted that the Petitioner was entitled to all the reliefs prayed for and costs of the suit.
Respondent’s Submissions
As to whether the Petition is a Constitutional petition or an ordinary employment claim dressed as a constitutional cause, reliance was placed on the decisions in Anarita Karimi Njeru v Republic (1979) KEEHC 30 (KLR), Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others (2013) KECA 445 (KLR), Speaker of National Assembly v James Njenga Karume (1992) KECA 42 (KLR) and Gebriel Mutava & 2 others v Managing Director Kenya Ports Authority & another (2016) KECA 411 (KLR), to submit that the reliefs sought were ordinary contractual claims governed by ordinary rules of evidence.
Counsel submitted that pleading of Articles 28, 41, 43 and 47 of the Constitution of Kenya without more could not transform a claim into a constitutional petition. Counsel urged the court to dismiss the petition or determine it as an ordinary employment dispute.
As to whether there was unfair termination of employment or expiry by effusion of time, reliance was placed on the decisions in Registered Trustees of the Presbyterian Church of East Africa & another v Ruth Gathoni Transparency International Kenya v Teresa Carlo Omondi (2023) KECA 174 (KLR), Registered Trustees De La Salle T/A St. Mary’s Boys Secondary School v Julius D. M. Baini (2017) KECA 1025 (KLR) and Bernard Wanjohi Muriuki v Kirinyaga Water & Sanitation Co Ltd (2012) KEELRC 4 (KLR), to submit that a fixed term contract of employment had no automatic right of renewal and the Petitioner had accepted the terms of his appointment and could not convert an expiry of contract to a termination of employment.
Counsel urged that isolated correspondence informal assistance and transitional media work would not create another contract and the provisions of Section 35, 36, 41, 43 and 45 of the Employment Act were not triggered. Counsel submitted that no unlawful termination of contract has been established.
On legitimate expectation, reliance was placed on the Supreme Court decision in Communications Commission of Kenya & 5 others (Supra) to urge that there must have been a clear unambiguous promise or representation. That legitimate expectation could not override clear statutory provisions.
Reliance was further placed on Transparency International-Kenya v Omondi (Supra) to urge that the doctrine of legitimate expectation does not arise to compel renewal of a fixed term contract and the principle of legitimate expectation was fact sensitive and exceptional principal.
Counsel submitted that previous records did not create an automatic right of renewal of contract and the duration of contracts in this case varied and each engagement was a fresh contract based on need, budget and approval and the documents relied upon could not defect a fixed term contract and continuity of the project did not imply continued engagement.
Counsel submitted that there was no exceptional pattern of an implied promise and all contracts had definite dates of commencement and expiry and the petitioner had not proved that the principle of legitimate expectation applied to his case.
Counsel submitted that since no legitimate expectation had been established, the alleged violations of Article 47 of the Constitution of Kenya and Section 4 of the Fair Administrative Action Act were in applicable and nothing turned on the issue as were alleged violations of Articles 28, 41 and 43 of the Constitution of Kenya.
On reliefs, counsel submitted that as no termination of contract had been proved, the declaration sought, compensation and notice pay were unavailable untaken leave was not proved as was the alleged sitting allowance.
Finally, counsel submitted that the authorities on termination of the contract of employment relied upon by the petitioner failed to answer the question whether there was a termination of employment at all.
Counsel submitted that a funded project does not automatically find every former employee of the organization and the email communication did not amount to a promise of renewal, or terms of the renewal.
Counsel urged the court to find that the petitioner had not proved any of the allegations made and the petition was for dismissal.
Analysis and determination
On 6 th February 2026 none of the parties was present in court and a mention was scheduled for 19 th February 2026 when the Petitioners Counsel was present and a further mention was slated for 9 th March 2026 when only the Petitioner’s counsel was present and confirmed that she had received a Replying Affidavit and sought time to file a response. A further mention was slated for 25 th March 2026 when only the Petitioner’s counsel was present and a further mention was slated for 21 st April 2026 before the judge, when again only the Petitioner’s counsel was present. Counsel informed the court that she had filed a Further Affidavits.
A further mention was scheduled for 11 th May 2026 when none of the parties was present at 9.00 am but the Petitioners counsel appeared at 9.20 am and a mention slated for 23 rd June 2026 when both counsels were present and a judgment date given.
On 25 th March 2026 the Petitioner’s counsel filed a Further Affidavit sworn on 24 th March 2026 pursuant to leave granted on 9 th March 2026.
On 11 th May 2026, counsel filed a Supplementary Affidavit sworn on 10 th May 2026 and on 21 st May 2026 counsel filed a Supplementary Affidavit sworn on 20 th May 2026 without leave of the court. The two (2) affidavits are expunged from the record.
The facts of the case a largely uncontested. As deponed by the Petitioner, his employment was grounded on fixed term contracts effective 1 st November 2017 to 31 st August 2023 when the last contract lapsed.
While the original contract run for three (3) years, the next contract was renewed from 1 st November 2021 to 31 st October 2022, one (1) year, the third was effective from 1 st November 2022 to 31 st December 2022 two (2) months and the last one was effective from 1 st January 2023 to 31 st August 2023, 8 months.
Other than in the first contract dated 25 th June 2019, which formalised an employment contract entered into early in 2017, the other renewals letter predated the commencement date of the contract of employment which implied that the Petitioner was aware of the renewal prior to the commencement date.
The court noted that the Petitioner’s status of employment from 1 st November 2020 to 31 st October 2021 was undefined or undisclosed.
Also notable was the fact that the contracts had no renewal clause and were styled as ‘offer of employment on fixed term contract’
Relatedly, the varied contractual periods left no doubt the duration was based on certain considerations possibly, need and funding among others.
It is not in dispute that the Petitioner’s contract ending on 31 st August 2023 was not renewed but the Petitioner deponed that he continued rendering services to the 2 nd Respondent for another four (4) months but was not paid and employment was dismissed thereafter. Indeed the Petitioner’s case is grounded on unfair, unlawful of termination of employment by the Respondent.
Under paragraph 9 of the Supporting Affidavit, the Petitioner deponed that the practice was that he would commence work and a written contract would follow. While that averment is true for the 1 st contract dated 28 th June 2019 which had commenced earlier in 2017, the subsequent contract dated 25 th October 2021 commenced on 1 st November 2021.
The Petitioner did not indicate when he signed but stated that he would commence work on 1 st December 2021. The third contract was dated 17 th October 2022 effort was effective 1 st November 2022. The petitioner indicated that he would commence work on 17 th October 2022 and did not indicate the date of the contract. The last contract was dated 20 th December 2022 and commenced on 1 st January 2023. The petitioner did not indicate when he signed the contract.
The foregoing, three contracts show that the contracts were actually concluded prior to the date of commencement and thus disprove the petitioner’s assertion that he would commence work and subsequently receive a written contract of employment. The practice appears to have been the quintessential practice in employment where employment commences after the contract of employment is entered into by the parties.
From the foregoing the issue that commend themselves for determination are:
(i) Whether the Petition meets the threshold of a constitutional petition.
(ii) Whether there was a termination of the petitioner’s employment by the Respondent or the contract of employment lapsed.
(iii) Whether the petitioner had a legitimate expectation that the contract would be renewed.
(iv) Whether petitioner is entitled to the reliefs prayed for.
On the first issue a Constitutional Petition is one which raises a fundamental Constitutional issue for determination and the jurisprudence on Constitutional litigation is as was encapsulated in Anarita Karimji Njeru v Republic (Supra) and subsequent decisions on the degree of precision namely, the Constitutional provision allegedly violated, the manner of violation and extent.
See also Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others (Supra).
Applying the test in Anarita’s case , the instant Petitions fails to meet the threshold of Constitutional Petition. This finding is further fortified by the character of the dispute and the scope of the reliefs sought.
First, the dispute is a plain vanilla employment dispute between and employer and employee on alleged termination of employment and whether there was a reasonable expectation for renewal of the employment contract. Neither of these is a constitutional issue or cannot be resolved without invocation of the Constitution.
Secondly, the reliefs prayed of are the typical reliefs in ordinary claims.
Finally, and conspicuously missing is the prayer for damages for the alleged infringements of Articles 28, 41 and 47 of the Constitution of Kenya.
Thus, the court is in agreement with the Respondents counsel’s submissions that the instant petition ought to be determined as a typical claim if not dismissed. Whereas claims disguised as constitutional Petitions have previously been struck out to facilitate their filing in the appropriate forum, this court is not persuaded that that is the opportune course of action in light of the cost to the Petitioner and time.
Concerning the unfair and unlawful termination of the Petitioners employment by the Respondent, counsels have adopted contrasting positions with the Petitioner urging that it was unfair for want of notice reason and procedural fairness. The Respondent maintained that no termination of employment took place. That the Petitioner’s employment terminated by effluxion of time.
Paragraph 10 of the Petitioner’s Supporting Affidavit states that the Petitioner’s employment was abruptly terminated by the 2 nd Respondent on 3 rd January 2024 without notice of non-renewal of contract despite previous renewals.
First, the Petitioner’s averments lack requisite particulars, for instance who terminated his contract of employment? Where? How? and what he did thereafter. The Petitioner did not attach a letter of termination of his employment or an email or cell phone message from anyone to buttress the assertion. Termination of employment is an event which takes place at a particular time, form and precipitates other actions and reactions, all of which are supportive material in an endeavour to demonstrate that parties separated on a particular day and it was unfair to the employee.
Under section 47(5) of the Employment Act.
For any complaint of unfair termination of employment or wrongful dismissal the burden of proving that an unfair termianiton of employment or wrongful dismissed has occurred shall rest on the employee while the burden of justifying the grounds for the termianiton of employment or wrongful dismissal shall rest on the employer.
This provision has been construed to mean that the employee is required to establish a prima facie of an unfair termination of employment or wrongful dismissal.
In Galgalo Jarso Jiilo v Agricultural Finance Corporation (2021) KEELRC 323 (KLR) B.O.M. Manani held:
“The interpretation given to the section by courts is that all the employee needs to do in order to discharge the burden of proof on him/her is to place before the court prima facie evidence suggesting that a termination has occurred and that the said termination lacks a substantive justification and or is procedurally flawed. Once the employee makes a prima facie case the burden of proof shift into the employer to justify the termination.”
See also this regard Josephine M. Ndungu & others v Plan International Inc (2019) eKLR, Rupra Construction Co Ltd v Makomere (2025) KEELRC 1376 (KLR), and Gitonga v Karanja Njenga Advocates (2025) KEELRC in Professional Clean Care v Fondo (2026) KEELRC 167 (KLR) where Mbaru J held:
“As a general rule the employee bears the burden of Proof that employment was terminated unfairly, un der section 47(5) of the Act the employee bears the initial burden of proof in claims of unfair termination. Only when a prima facie case is established does the employer need to justify the termination of employment.”
Applying these provisions and propositions of law to the facts of the instant case, the court finds that the Petitioner did not discharge the initial burden of establishing a prima facie case of an unfair termination of employment on account that the averment at paragraph 10 of the Supporting Affidavit sworn on 8 th January 2026 lacked any supportive material. The burden of proof did not shift to the employer by justify the termination of employment.
The employer denied having terminated the Petitioner’s employment.
As the whether the petitioner‘s employment contract lapsed, it is common ground the petitioner was serving the respondent as the Deputy HOD Rally Public Relations Expert effective 1 st November 2017 and served under four (4) contracts in total, of 3 years, 12 months, 2 months and 8 months.
The last three were entered into back to back and all contracted before the commencement date. It requires no emphasis that the last fixed term contract lapsed on 31 st August 2023.
The contract had no renewal clause and none of the Respondents had promised or represented or conducted themselves in such a manner as to suggest that contract would be renewed.
As submitted by the Petitioner’s counsel, the principles that govern fixed term contracts are well settled by the Court of Appeal in several decisions such as Registered Trustee of the Presbyterian Church of East African & another v Ruth Gathoni Ngotho (Supra) where the court was un ambiguous that;
“Bearing the foregoing in mind, we note that fixed term contract carries no rights, obligations or expectations beyond the date of expiry. Accordingly, any claim based after the expiry of the respondent’s contract ought not to have been maintained. This is in relation to the salary of the months 5 th April up to may 2010. Similarly, since the Respondent’s contract came to amend by effluxion of time any claim for wrongful termination could not be maintained.”
The foregoing proposition of law was upheld in Registered Trustee De La Salle T/A St. Marys Boys Secondary School v Julius D. M Baini (Supra) and Transparency International -Kenya v Omondi (Supra) and is also reflected in the reasoning of the Court of Appeal in Francis Chire Chachi v Amatsi Water Service Co Ltd (2012) eKLR and the sentiments of Rika J in Margaret A. Achieng v National Water Conservation & Pipeline Corporation (2014) eKLR.
The foregoing decisions are clear that fixed term contract lapses by effluxion of time and no notice of termianiton is required unless the contract itself provides for its issuance. The Petitioner’s contract dated 20 th December 22 had no provision for notice. Its end date was stated as 31 st August 2023 and it ended on that date and is held in Transparency International Kenya v Omondi (Supra ), non-renewal of a fixed term contract cannot constitute unfair termination or dismissal.
However, according to the Petitioner after contract lapsed, he continued being an employee by dint of the doctrine of legitimate expectation that it would be renewed, which ushers in the third issue for determination.
Concerning the applicability of the doctrine of legitimate expectations, the petitioner’s counsel urged that after the fixed term contract lapsed, the petitioner remained engaged in assigned official duties as a month-to-month employee. Counsel submitted that since the contracts of employment were renewed routinely, a practice had been established and the petitioner reasonably expected a renewal. That he had a legitimate expectation.
It is trite law that the doctrine of legitimate expectation is a creation of public law and principally administrative law.
In Transparency International-Kenya v Omondi (Supra ) the Court of Appeal held;
“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.
The pith and substance of the case is whether the petitioner had sufficient grounds to expect a renewal of the contract.
In Keen Kleeners Ltd v Kenya Plantation and Agricultural Workers Union (Supra) it was held that long standing uninterrupted and consistent practice of renewing or extending contracts of employment would create an expectation of renewal on the absence of reasonable notice to the contrary.
As adverted to elsewhere in this case, the Petitioner’s contract of employment was renewed a total of three times when the 1 st contract lapsed, there was no renewal until a new contract was entered into on25th October 2021.
The court has elsewhere demonstrated that in all renewals from 1 st November 2021 to 31 st August 2023 the Petitioner executed the employment contract prior to the commencement of the contract but when the last contract lapsed he continued working yet he had not signed a contract as before.
In the courts view, the Respondent was consistent in having the contract signed before the commencement date as it ought to be and arguably the petitioner had no basis of expecting a renewal of the contract of employment and it ought to have occurred to him when he was not paid the salary for September 2023, if he was working at all.
Closely related to the foregoing the copies of emails letters and documents attached as evidence of having worked for four (4) months is patently unconvincing. The petitioner was a full-time employee of the 2 nd Respondent and ought to have had loads of evidence for having worked for four (4) months, which is a long time at the work place. This is evidentiary demonstrable but the petitioner’s evidence of the work done fall below the threshold. The documents on record cannot account for seven working days for an employee working from 8.00 am to 5.00 pm. It behooved the petitioner to prove that he actually worked for four (4) months as he who alleges bears the proof by dint of section 107 of the Evidence Act.
In the court’s view, if the 2 nd Respondent had paid for the one (1) or two (2) months, that would have been an unambiguous representation that there was existing contractual relationship. But that was not the case.
Similarly, in the request for gratuity dated 26 th October, 2026, the petitioner and two (2) others were claiming pay until 31 st October 2023 which was adjusted to 4 th January 2024 vide letter dated 11 th June 2024 as the date of expiry of committees.
In the court’s view the petitioner may have had an expectation for renewal of the contract but from the 2 nd Respondent’s practice of having the contract signed before commencement of employment, the employer’s expectation was neither legitimate nor reasonable.
On reliefs the court proceeds as follows:
Having found that the petitioner failed to prove that his employment contract was terminated by the 2 nd Respondent or the doctrine of legitimate expectation applied to this case, the declaration sought compensation, salary arrears and pay in lieu of notice were unsustainable and are disallowed.
The prayer for leave days lacks particulars, for instance, number of days and when they accrued. The petitioner’s claim implies that he was at the workplace every day from 1 st November 2017 to December 2023 without having been on any type of leave for a single day. The prayer is unproved and it is disallowed.
The prayer for sitting allowance from November 2017 to 27 th June 2019 lacks particular too. How many meetings were attended and when? Most significantly, the claim is stature barred by dint of section 89 of the Employment Act.
The prayer is declined.
On gratuity the court is guided by the sentiments of the court in Bamburi Cement Co. Ltd v William Kilonzi (2016) KECA 546 (KLR) where the court held:
“Turning to the award of gratuity, the first thing that we must emphasize is that gratuity as the name implies it a gratuitous payment for services rendered. It is paid to an employee or his estate by an employer at the end of a contract or upon resignation, or retirement or upon death of the employee as lumpsum amount at the discretion of an employer. The employee does not contribute any summon portion of his salary towards payment of gratuity.
An employer may consider the option of gratuity in lieu of a pension scheme. Being a gratuitous payment, the contract of employment may provide that the employer shall gratuity fi the termination of employment is through dismissal arising from gross or other misconduct.
But where like there the dismissal is not justified and is wrongful the employee will be awarded gratuity if it is provided for in the contract of employment.”
In the instant case, none of the four (4) fixed term contracts entered into by the petitioner had a clause on gratuity. In their letter’s dates 11 th June 2024 and 26 th October 2023, the petitioner and his colleagues cited labour laws of Kenya as the basis of the claim for gratuity.
It is trite law that gratuity is only awardable where it is provided for by the contract of employment or incorporated therein in by dint of a Collective Bargaining Agreement between the employer and a trade union. In this case no gratuity was payable under the contracts of employment and the prayer is disallowed. The letter relied upon as persuasive authority related to a contract entered into aft
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IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
PETITION NO. E007 OF 2026
(Before Hon. Justice Dr. Jacob Gakeri)
PETER MUNGAI NJENGA………………………………..PETITIONER
VERSUS
MINISTRY OF YOUTH AFFAIRS, CREATIVE ECONOMY & SPORTS…………………………….……………………..1 ST RESPONDENT
WORLD RALLY CHAMPIONSHIP (WRC) SAFARI RALLY KENYA………………………………………………………2 ND RESPONDENT
THE HON. ATTORNEY GENERAL……………………3 RD RESPONDENT
JUDGMENT
The Petitioner commenced this Petition on 12 th January 2026 alleging that the Respondents had violated his Constitutional rights to fair labour practices, social economic rights and right to fair administrative action.
The Petitioner’s case is that vide letter dated 25 th June 2019, he was employed by the World Safari Rally Project at a consolidated salary of Kshs.178,320.00 effective 1 st November 2017 and was also appointed as a member of the Organizing Committee of the WRC Safari Rally Project vide Gazette Notice No. 12089 of 2017 of 23 rd November 2017 by the Cabinet Secretary, Sports Culture and the Arts.
Subsequently, the Ministry of Youth affairs for 3 years but resigned on 27 th June 2019.
That he served diligently and his salary increased to Kshs.209,900.00 and the contract renewed from 1 st November 2021 to 31 st October 2022, from 1 st November 2022 to 31 st December 2022 and finally from 1 st January 2023 to 31 st August 2023.
The Petitioner averred that after 31 st August 2023, he continued rendering services as the WRC Safari Rally Project was still active and operational with no renewal of the contract of employment and thus remained in employment pending issuance of a notice of renewal but his employment was abruptly terminated on 3 rd January 2024 by the 2 nd Respondent without Notice.
The Petitioner averred that he had a legitimate expectation that his contract would be renewed and notice of termination was given.
The Petitioner prays for:
(i) Declaration that termination of his employment was unfair and unlawful
(ii) Twelve (12) months compensation Kshs.2,518,800.00
(iii) Salary arrears from August 2023 to December 2023 Kshs.1,049,500
(iv) Gratuity Kshs.2,260,737.00
(v) Salary in lieu of notice Kshs.209,900
(vi) Untaken leave days Kshs.734,650.00
(vii) Sitting allowance for the duration served as member of the WRC Safari Rally organizing Committee 1 st November 2017 -27 th June 2019
(viii) Costs of the suit
(ix) Interest on (ii) to (vii) above at court rates from date of filing the suit.
(x) Certificate of service
(xi) Any other or further relief that the Honourable court may deem fit and just to grant.
Respondent’s case
Vide a Replying Affidavit sworn in opposition to the petition on 10 th February 2026, Mr. Dennis Kinyua deponed that he was the Director of Human Resource Management of the 2 nd Respondent.
The affiant admitted that the Petitioner was their employee under several fixed term contracts and denied that the Respondents terminated his employment abruptly as the fixed term contracts were not automatically renewable but dependent on availability of funds and budgetary allocation and on expiry of the last contract, the Respondents were under no obligation to issue a notice of termination.
That vide Gazette Notice No. 1769 dated 16 th February 2024, the Cabinet Secretary was mandated to constitute the WRC Safari Rally Kenya Secretariat, pursuant to new appointment letters and the petitioner’s name was not included.
The affiant deponed that all salaries and dues payable to the petitioner during the contract period were fully paid and none was outstanding the contracts did not provide for gratuity and the petitioner was a member of the National Social Security Fund (NSSF) and had no leave application was made or denied and the suit was for dismissal with costs.
By a Further Affidavit, sworn on 24 th March 2026, the Petitioner averred that he performed duties beyond expiry of his contract on 31 st August 2023 pending formal renewal of the contract as was the practice and emails and correspondence corroborated that fact and the project was funded by the Government of Kenya and sponsors and the Project remained operational after 2023.
Petitioner’s submissions
On violations of the Constitution of Kenya, provisions of the Employment Act and Fair Administrative Action Act, counsel relied on the decisions in The German School Society & another Vohany & another (2023) KECA 894 (KLR) on the elements of fair termination of employment, the decision in Pius Machafu Isindu v Lavington Security Guards Ltd (2017) KECA 255 (KLR) on the same and the decision in Kamendi v Kenya Breweries Ltd (2023) KECA 1210 (KLR) on the requirement of the valid reason(s) for termination of employment, to submit that the Respondents did not issue the Petitioner with a notice to show cause or letter of termination of employment or notice of non-renewal of contract and could not purport to rely on the fixed term contract.
Counsel urged the court to find that termination of the Petitioner’s employment was unfair within the meaning of Section 45 of the Deployment Act.
On procedural fairness, counsel cited the decisions in Geoffrey Gikonyo Mathu v Intex Construction Co Ltd (2017) KECA 688 (KLR) and Postal Corporation of Kenya v Andrew K. Tanui (2019) eKLR on the elements of procedural fairness under section 41 of the Employment Act.
Also cited on fair hearing was the decision in Gichuru v Package Insurance Brokers Ltd (2021) KESC 12 (KLR) .
On violation of Article 47 of the Constitution of Kenya, reliance was placed on the decision in Cargill Kenya Ltd v Mwaka & 3 others (2021) KECA 115 (KLR).
On legitimate expectation, reliance was placed on the decision in Communication Commission of Kenya & 5 others v Royal Media Services & 5 others (2014) eKLR on the ingredients of legitimate expectation such as promise or practice by a public authority to urge that the Respondents had a practice that contracts would be renewed seamlessly over the years whenever the project was on going and the Petitioner expected renewal of the contract and no non-renewal notice was issued yet one was issued to a colleague on 29 th April 2026.
Reliance was also placed on decisions in Keen Kleeners Ltd v Kenya Plantation & Agricultural Workers Union (2021) KECA 352 (KLR) on practice as was the decision in Christopher Shabiri Changalwa v Unga Ltd Cause No. 259 of 2017. Decisions in Attorney General v Kituo Cha Sheria & 7 others (2017) KECA 773 (KLR) and Kenya County Government Workers Union v County Government of Nyeri & another (2015) KEELRC 100 (KLR) were cited to urge that the Respondents violated the Petitioner’s right to human dignity. Counsel, further submitted that Respondents violated the Petitioner’s social economic rights by not paying his salary for four (4) months.
On reliefs, counsel submitted that the Petitioner was entitled to all the reliefs prayed for and costs of the suit.
Respondent’s Submissions
As to whether the Petition is a Constitutional petition or an ordinary employment claim dressed as a constitutional cause, reliance was placed on the decisions in Anarita Karimi Njeru v Republic (1979) KEEHC 30 (KLR), Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others (2013) KECA 445 (KLR), Speaker of National Assembly v James Njenga Karume (1992) KECA 42 (KLR) and Gebriel Mutava & 2 others v Managing Director Kenya Ports Authority & another (2016) KECA 411 (KLR), to submit that the reliefs sought were ordinary contractual claims governed by ordinary rules of evidence.
Counsel submitted that pleading of Articles 28, 41, 43 and 47 of the Constitution of Kenya without more could not transform a claim into a constitutional petition. Counsel urged the court to dismiss the petition or determine it as an ordinary employment dispute.
As to whether there was unfair termination of employment or expiry by effusion of time, reliance was placed on the decisions in Registered Trustees of the Presbyterian Church of East Africa & another v Ruth Gathoni Transparency International Kenya v Teresa Carlo Omondi (2023) KECA 174 (KLR), Registered Trustees De La Salle T/A St. Mary’s Boys Secondary School v Julius D. M. Baini (2017) KECA 1025 (KLR) and Bernard Wanjohi Muriuki v Kirinyaga Water & Sanitation Co Ltd (2012) KEELRC 4 (KLR), to submit that a fixed term contract of employment had no automatic right of renewal and the Petitioner had accepted the terms of his appointment and could not convert an expiry of contract to a termination of employment.
Counsel urged that isolated correspondence informal assistance and transitional media work would not create another contract and the provisions of Section 35, 36, 41, 43 and 45 of the Employment Act were not triggered. Counsel submitted that no unlawful termination of contract has been established.
On legitimate expectation, reliance was placed on the Supreme Court decision in Communications Commission of Kenya & 5 others (Supra) to urge that there must have been a clear unambiguous promise or representation. That legitimate expectation could not override clear statutory provisions.
Reliance was further placed on Transparency International-Kenya v Omondi (Supra) to urge that the doctrine of legitimate expectation does not arise to compel renewal of a fixed term contract and the principle of legitimate expectation was fact sensitive and exceptional principal.
Counsel submitted that previous records did not create an automatic right of renewal of contract and the duration of contracts in this case varied and each engagement was a fresh contract based on need, budget and approval and the documents relied upon could not defect a fixed term contract and continuity of the project did not imply continued engagement.
Counsel submitted that there was no exceptional pattern of an implied promise and all contracts had definite dates of commencement and expiry and the petitioner had not proved that the principle of legitimate expectation applied to his case.
Counsel submitted that since no legitimate expectation had been established, the alleged violations of Article 47 of the Constitution of Kenya and Section 4 of the Fair Administrative Action Act were in applicable and nothing turned on the issue as were alleged violations of Articles 28, 41 and 43 of the Constitution of Kenya.
On reliefs, counsel submitted that as no termination of contract had been proved, the declaration sought, compensation and notice pay were unavailable untaken leave was not proved as was the alleged sitting allowance.
Finally, counsel submitted that the authorities on termination of the contract of employment relied upon by the petitioner failed to answer the question whether there was a termination of employment at all.
Counsel submitted that a funded project does not automatically find every former employee of the organization and the email communication did not amount to a promise of renewal, or terms of the renewal.
Counsel urged the court to find that the petitioner had not proved any of the allegations made and the petition was for dismissal.
Analysis and determination
On 6 th February 2026 none of the parties was present in court and a mention was scheduled for 19 th February 2026 when the Petitioners Counsel was present and a further mention was slated for 9 th March 2026 when only the Petitioner’s counsel was present and confirmed that she had received a Replying Affidavit and sought time to file a response. A further mention was slated for 25 th March 2026 when only the Petitioner’s counsel was present and a further mention was slated for 21 st April 2026 before the judge, when again only the Petitioner’s counsel was present. Counsel informed the court that she had filed a Further Affidavits.
A further mention was scheduled for 11 th May 2026 when none of the parties was present at 9.00 am but the Petitioners counsel appeared at 9.20 am and a mention slated for 23 rd June 2026 when both counsels were present and a judgment date given.
On 25 th March 2026 the Petitioner’s counsel filed a Further Affidavit sworn on 24 th March 2026 pursuant to leave granted on 9 th March 2026.
On 11 th May 2026, counsel filed a Supplementary Affidavit sworn on 10 th May 2026 and on 21 st May 2026 counsel filed a Supplementary Affidavit sworn on 20 th May 2026 without leave of the court. The two (2) affidavits are expunged from the record.
The facts of the case a largely uncontested. As deponed by the Petitioner, his employment was grounded on fixed term contracts effective 1 st November 2017 to 31 st August 2023 when the last contract lapsed.
While the original contract run for three (3) years, the next contract was renewed from 1 st November 2021 to 31 st October 2022, one (1) year, the third was effective from 1 st November 2022 to 31 st December 2022 two (2) months and the last one was effective from 1 st January 2023 to 31 st August 2023, 8 months.
Other than in the first contract dated 25 th June 2019, which formalised an employment contract entered into early in 2017, the other renewals letter predated the commencement date of the contract of employment which implied that the Petitioner was aware of the renewal prior to the commencement date.
The court noted that the Petitioner’s status of employment from 1 st November 2020 to 31 st October 2021 was undefined or undisclosed.
Also notable was the fact that the contracts had no renewal clause and were styled as ‘offer of employment on fixed term contract’
Relatedly, the varied contractual periods left no doubt the duration was based on certain considerations possibly, need and funding among others.
It is not in dispute that the Petitioner’s contract ending on 31 st August 2023 was not renewed but the Petitioner deponed that he continued rendering services to the 2 nd Respondent for another four (4) months but was not paid and employment was dismissed thereafter. Indeed the Petitioner’s case is grounded on unfair, unlawful of termination of employment by the Respondent.
Under paragraph 9 of the Supporting Affidavit, the Petitioner deponed that the practice was that he would commence work and a written contract would follow. While that averment is true for the 1 st contract dated 28 th June 2019 which had commenced earlier in 2017, the subsequent contract dated 25 th October 2021 commenced on 1 st November 2021.
The Petitioner did not indicate when he signed but stated that he would commence work on 1 st December 2021. The third contract was dated 17 th October 2022 effort was effective 1 st November 2022. The petitioner indicated that he would commence work on 17 th October 2022 and did not indicate the date of the contract. The last contract was dated 20 th December 2022 and commenced on 1 st January 2023. The petitioner did not indicate when he signed the contract.
The foregoing, three contracts show that the contracts were actually concluded prior to the date of commencement and thus disprove the petitioner’s assertion that he would commence work and subsequently receive a written contract of employment. The practice appears to have been the quintessential practice in employment where employment commences after the contract of employment is entered into by the parties.
From the foregoing the issue that commend themselves for determination are:
(i) Whether the Petition meets the threshold of a constitutional petition.
(ii) Whether there was a termination of the petitioner’s employment by the Respondent or the contract of employment lapsed.
(iii) Whether the petitioner had a legitimate expectation that the contract would be renewed.
(iv) Whether petitioner is entitled to the reliefs prayed for.
On the first issue a Constitutional Petition is one which raises a fundamental Constitutional issue for determination and the jurisprudence on Constitutional litigation is as was encapsulated in Anarita Karimji Njeru v Republic (Supra) and subsequent decisions on the degree of precision namely, the Constitutional provision allegedly violated, the manner of violation and extent.
See also Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others (Supra).
Applying the test in Anarita’s case , the instant Petitions fails to meet the threshold of Constitutional Petition. This finding is further fortified by the character of the dispute and the scope of the reliefs sought.
First, the dispute is a plain vanilla employment dispute between and employer and employee on alleged termination of employment and whether there was a reasonable expectation for renewal of the employment contract. Neither of these is a constitutional issue or cannot be resolved without invocation of the Constitution.
Secondly, the reliefs prayed of are the typical reliefs in ordinary claims.
Finally, and conspicuously missing is the prayer for damages for the alleged infringements of Articles 28, 41 and 47 of the Constitution of Kenya.
Thus, the court is in agreement with the Respondents counsel’s submissions that the instant petition ought to be determined as a typical claim if not dismissed. Whereas claims disguised as constitutional Petitions have previously been struck out to facilitate their filing in the appropriate forum, this court is not persuaded that that is the opportune course of action in light of the cost to the Petitioner and time.
Concerning the unfair and unlawful termination of the Petitioners employment by the Respondent, counsels have adopted contrasting positions with the Petitioner urging that it was unfair for want of notice reason and procedural fairness. The Respondent maintained that no termination of employment took place. That the Petitioner’s employment terminated by effluxion of time.
Paragraph 10 of the Petitioner’s Supporting Affidavit states that the Petitioner’s employment was abruptly terminated by the 2 nd Respondent on 3 rd January 2024 without notice of non-renewal of contract despite previous renewals.
First, the Petitioner’s averments lack requisite particulars, for instance who terminated his contract of employment? Where? How? and what he did thereafter. The Petitioner did not attach a letter of termination of his employment or an email or cell phone message from anyone to buttress the assertion. Termination of employment is an event which takes place at a particular time, form and precipitates other actions and reactions, all of which are supportive material in an endeavour to demonstrate that parties separated on a particular day and it was unfair to the employee.
Under section 47(5) of the Employment Act.
For any complaint of unfair termination of employment or wrongful dismissal the burden of proving that an unfair termianiton of employment or wrongful dismissed has occurred shall rest on the employee while the burden of justifying the grounds for the termianiton of employment or wrongful dismissal shall rest on the employer.
This provision has been construed to mean that the employee is required to establish a prima facie of an unfair termination of employment or wrongful dismissal.
In Galgalo Jarso Jiilo v Agricultural Finance Corporation (2021) KEELRC 323 (KLR) B.O.M. Manani held:
“The interpretation given to the section by courts is that all the employee needs to do in order to discharge the burden of proof on him/her is to place before the court prima facie evidence suggesting that a termination has occurred and that the said termination lacks a substantive justification and or is procedurally flawed. Once the employee makes a prima facie case the burden of proof shift into the employer to justify the termination.”
See also this regard Josephine M. Ndungu & others v Plan International Inc (2019) eKLR, Rupra Construction Co Ltd v Makomere (2025) KEELRC 1376 (KLR), and Gitonga v Karanja Njenga Advocates (2025) KEELRC in Professional Clean Care v Fondo (2026) KEELRC 167 (KLR) where Mbaru J held:
“As a general rule the employee bears the burden of Proof that employment was terminated unfairly, un der section 47(5) of the Act the employee bears the initial burden of proof in claims of unfair termination. Only when a prima facie case is established does the employer need to justify the termination of employment.”
Applying these provisions and propositions of law to the facts of the instant case, the court finds that the Petitioner did not discharge the initial burden of establishing a prima facie case of an unfair termination of employment on account that the averment at paragraph 10 of the Supporting Affidavit sworn on 8 th January 2026 lacked any supportive material. The burden of proof did not shift to the employer by justify the termination of employment.
The employer denied having terminated the Petitioner’s employment.
As the whether the petitioner‘s employment contract lapsed, it is common ground the petitioner was serving the respondent as the Deputy HOD Rally Public Relations Expert effective 1 st November 2017 and served under four (4) contracts in total, of 3 years, 12 months, 2 months and 8 months.
The last three were entered into back to back and all contracted before the commencement date. It requires no emphasis that the last fixed term contract lapsed on 31 st August 2023.
The contract had no renewal clause and none of the Respondents had promised or represented or conducted themselves in such a manner as to suggest that contract would be renewed.
As submitted by the Petitioner’s counsel, the principles that govern fixed term contracts are well settled by the Court of Appeal in several decisions such as Registered Trustee of the Presbyterian Church of East African & another v Ruth Gathoni Ngotho (Supra) where the court was un ambiguous that;
“Bearing the foregoing in mind, we note that fixed term contract carries no rights, obligations or expectations beyond the date of expiry. Accordingly, any claim based after the expiry of the respondent’s contract ought not to have been maintained. This is in relation to the salary of the months 5 th April up to may 2010. Similarly, since the Respondent’s contract came to amend by effluxion of time any claim for wrongful termination could not be maintained.”
The foregoing proposition of law was upheld in Registered Trustee De La Salle T/A St. Marys Boys Secondary School v Julius D. M Baini (Supra) and Transparency International -Kenya v Omondi (Supra) and is also reflected in the reasoning of the Court of Appeal in Francis Chire Chachi v Amatsi Water Service Co Ltd (2012) eKLR and the sentiments of Rika J in Margaret A. Achieng v National Water Conservation & Pipeline Corporation (2014) eKLR.
The foregoing decisions are clear that fixed term contract lapses by effluxion of time and no notice of termianiton is required unless the contract itself provides for its issuance. The Petitioner’s contract dated 20 th December 22 had no provision for notice. Its end date was stated as 31 st August 2023 and it ended on that date and is held in Transparency International Kenya v Omondi (Supra ), non-renewal of a fixed term contract cannot constitute unfair termination or dismissal.
However, according to the Petitioner after contract lapsed, he continued being an employee by dint of the doctrine of legitimate expectation that it would be renewed, which ushers in the third issue for determination.
Concerning the applicability of the doctrine of legitimate expectations, the petitioner’s counsel urged that after the fixed term contract lapsed, the petitioner remained engaged in assigned official duties as a month-to-month employee. Counsel submitted that since the contracts of employment were renewed routinely, a practice had been established and the petitioner reasonably expected a renewal. That he had a legitimate expectation.
It is trite law that the doctrine of legitimate expectation is a creation of public law and principally administrative law.
In Transparency International-Kenya v Omondi (Supra ) the Court of Appeal held;
“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.
The pith and substance of the case is whether the petitioner had sufficient grounds to expect a renewal of the contract.
In Keen Kleeners Ltd v Kenya Plantation and Agricultural Workers Union (Supra) it was held that long standing uninterrupted and consistent practice of renewing or extending contracts of employment would create an expectation of renewal on the absence of reasonable notice to the contrary.
As adverted to elsewhere in this case, the Petitioner’s contract of employment was renewed a total of three times when the 1 st contract lapsed, there was no renewal until a new contract was entered into on25th October 2021.
The court has elsewhere demonstrated that in all renewals from 1 st November 2021 to 31 st August 2023 the Petitioner executed the employment contract prior to the commencement of the contract but when the last contract lapsed he continued working yet he had not signed a contract as before.
In the courts view, the Respondent was consistent in having the contract signed before the commencement date as it ought to be and arguably the petitioner had no basis of expecting a renewal of the contract of employment and it ought to have occurred to him when he was not paid the salary for September 2023, if he was working at all.
Closely related to the foregoing the copies of emails letters and documents attached as evidence of having worked for four (4) months is patently unconvincing. The petitioner was a full-time employee of the 2 nd Respondent and ought to have had loads of evidence for having worked for four (4) months, which is a long time at the work place. This is evidentiary demonstrable but the petitioner’s evidence of the work done fall below the threshold. The documents on record cannot account for seven working days for an employee working from 8.00 am to 5.00 pm. It behooved the petitioner to prove that he actually worked for four (4) months as he who alleges bears the proof by dint of section 107 of the Evidence Act.
In the court’s view, if the 2 nd Respondent had paid for the one (1) or two (2) months, that would have been an unambiguous representation that there was existing contractual relationship. But that was not the case.
Similarly, in the request for gratuity dated 26 th October, 2026, the petitioner and two (2) others were claiming pay until 31 st October 2023 which was adjusted to 4 th January 2024 vide letter dated 11 th June 2024 as the date of expiry of committees.
In the court’s view the petitioner may have had an expectation for renewal of the contract but from the 2 nd Respondent’s practice of having the contract signed before commencement of employment, the employer’s expectation was neither legitimate nor reasonable.
On reliefs the court proceeds as follows:
Having found that the petitioner failed to prove that his employment contract was terminated by the 2 nd Respondent or the doctrine of legitimate expectation applied to this case, the declaration sought compensation, salary arrears and pay in lieu of notice were unsustainable and are disallowed.
The prayer for leave days lacks particulars, for instance, number of days and when they accrued. The petitioner’s claim implies that he was at the workplace every day from 1 st November 2017 to December 2023 without having been on any type of leave for a single day. The prayer is unproved and it is disallowed.
The prayer for sitting allowance from November 2017 to 27 th June 2019 lacks particular too. How many meetings were attended and when? Most significantly, the claim is stature barred by dint of section 89 of the Employment Act.
The prayer is declined.
On gratuity the court is guided by the sentiments of the court in Bamburi Cement Co. Ltd v William Kilonzi (2016) KECA 546 (KLR) where the court held:
“Turning to the award of gratuity, the first thing that we must emphasize is that gratuity as the name implies it a gratuitous payment for services rendered. It is paid to an employee or his estate by an employer at the end of a contract or upon resignation, or retirement or upon death of the employee as lumpsum amount at the discretion of an employer. The employee does not contribute any summon portion of his salary towards payment of gratuity.
An employer may consider the option of gratuity in lieu of a pension scheme. Being a gratuitous payment, the contract of employment may provide that the employer shall gratuity fi the termination of employment is through dismissal arising from gross or other misconduct.
But where like there the dismissal is not justified and is wrongful the employee will be awarded gratuity if it is provided for in the contract of employment.”
In the instant case, none of the four (4) fixed term contracts entered into by the petitioner had a clause on gratuity. In their letter’s dates 11 th June 2024 and 26 th October 2023, the petitioner and his colleagues cited labour laws of Kenya as the basis of the claim for gratuity.
It is trite law that gratuity is only awardable where it is provided for by the contract of employment or incorporated therein in by dint of a Collective Bargaining Agreement between the employer and a trade union. In this case no gratuity was payable under the contracts of employment and the prayer is disallowed. The letter relied upon as persuasive authority related to a contract entered into aft
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