Akinyi & 4 others v Kenya Medical Research Institute [KEMRI] & another (Petition E007 of 2023) [2023] KEELRC 2060 (KLR)
The bottom line
#Kenya's Employment Court ruled that long-serving contract staff on donor-funded projects cannot demand contract renewal when donor funding shrinks.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Petitioners had legitimate expectation of renewal of their contracts until 2025
- 2.Whether their constitutional and statutory rights were violated by the Respondents
- 3.Whether they are entitled to declaratory orders, reinstatement or damages and costs
Key legal issues
#Whether long service on serially renewed fixed-term contracts in a donor-funded project creates a legitimate expectation of renewal
No. Employment was wholly sustained by donor funding; renewals depended on availability of funds, funding was reduced, and Petitioners failed to give contractual notice of their wish to renew
The Court held that in donor-funded time-bound projects employees cannot expect continued employment irrespective of funds. Legitimate expectation is fact-dependent; mere long service is insufficient - continuity and terms of successive contracts must be shown. The Petitioners also failed to notify the Director-General under clause 2.8.1 of the Manual or their contracts, and were deemed to have completed their terms under clause 2.8.2.
How a subordinate court should resolve conflicting Court of Appeal precedent on legitimate expectation of renewal of fixed-term contracts
Conflicting precedents must be examined against undisputed sources of law (legislation and Constitution) and distinguished on facts; the Court relied on Section 45(5)(d) of the Employment Act and decisions permitting legitimate expectation in unique circumstances
The Court acknowledged conflicting Court of Appeal authorities (Keen Kleeners and Transparency International Kenya v. Omondi). Applying principles from Young v. Bristol Aeroplane and scholarly commentary, it held lower courts cannot choose between conflicting same-level precedents by a last-in-time rule, but must test the precedents against legislation, the Constitution and the distinguishing facts, finding statutory support in Section 45(5)(d).
Whether the non-renewal and internal recruitment amounted to unconstitutional treatment, discrimination, nepotism or breach of fair labour practices
No violations established; no evidence of improper motive, discrimination, nepotism or targeting; non-renewal flowed from reduced donor funding and expired contracts
The Court found funding for the 2022-2023 phase was reduced from Kshs. 104,874,325 to Kshs. 94,373,376, compelling staff reductions. Petitioners applied unsuccessfully for reduced positions. Allegations of nepotism and discrimination against marginalized communities were unsupported by particulars or evidence. Expiry of fixed-term contracts was not redundancy and no declaration under Articles 10, 27, 28, 41, 47, 73 or 232 was justified.
Whether the 2nd Respondent bears liability
No - he was an employee of the 1st Respondent, not party to the AMREF-KEMRI agreement and not the employer
The 2nd Respondent was an employee and principal investigator on the PEPFAR-AMREF project but not a recipient of the sub-award or the Petitioners' employer; employment liability rests with the 1st Respondent only.
Legal principles established
#- Employees in donor-funded, time-bound projects do not have a legitimate and reasonable expectation of continued employment irrespective of availability of donor funds
- There is no legitimate expectation of renewal where an Employee has not complied with contractual and HR Manual notice requirements for renewal
- Expiry of a fixed-term contract is not a redundancy situation
- Where Superior Court precedent conflicts, lower courts must examine the conflicting precedents alongside undisputed sources of law such as legislation and the Constitution, and may distinguish on facts
- A second individual Respondent who is merely an employee and not a party to the funding agreement cannot bear employment liability
Court orders
#- 1.The Petition is declined.
- 2.No order on the costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 22 and 258 of the Constitution (Petitioners' pleaded capacity to petition the Court)
Relief refused
#Declaration of legitimate expectation to employment until 2025
No evidence of legitimate expectation; funding was reduced and contracts expired
Declaration that the replacement process was unlawful and quashing thereof, with reinstatement and back salaries
No evidence that internal interviews or KMR grading implementation contravened legitimate expectation or constitutional articles
Declaration that Petitioners be deemed permanent and pensionable
Petitioners did not demonstrate continuous employment independent of donor-funded projects, nor raise the issue over many years
Compensation equivalent to lost salaries under the KEMRI-AMREF grant 2021-2025
Salaries were donor-funded; it would be against the Manual to order KEMRI to pay salaries it alone could not fund
Costs with interest
Court ordered no order on costs
Costs
No order on the costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In Sum, It Is Ordered: a. The Petition is declined. b. No order on the costs.
The Court does not think that in donor funded projects, which operate for specified period, Employees would have legitimate and reasonable expectation of continued employment, irrespective of the availability of donor funds.
There would be no legitimate expectation of renewal, where an Employee has not complied with the terms of the Human Resource and Procedure Manual, and individual contract of employment, governing renewal.
The Court does not think that the circumstances leading to the Petitioners leaving employment, amounted to a redundancy situation.
Conflicting precedents remain authoritative sources of the law, but must be examined closely with other undisputed sources of the law.
Courts below the Court of Appeal have an obligation to follow and apply decisions of the Court of Appeal. All Courts have an obligation to follow the decisions of the Supreme Court.
Issues in the judgment
#The judgment refers to 'The Amnesty International-Kenya decision, not Keen Kleeners' when discussing the last-in-time rule, but Amnesty International-Kenya is not an authority cited elsewhere in the judgment; the reference appears inconsistent with the two conflicting decisions discussed (Keen Kleeners and Transparency International Kenya v. Omondi)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Akinyi & 4 others v Kenya Medical Research Institute [KEMRI] & another (Petition E007 of 2023) [2023] KEELRC 2060 (KLR)", Case Analysis (2023). Not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2060/eng@2023-08-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.