Muthiani & 4 others v Salvation Army Kenya East Territory (Employment and Labour Relations Cause E712 of 2022) [2025] KEELRC 574 (KLR)
The bottom line
#Kenya's Employment Court ruled that employees who keep working after their contracts expire, on promises of re-engagement, are still entitled to pay.
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 Claimants' employment ended by effluxion of time on 31st October 2021 or whether they continued to be engaged by the Respondent after that date
- 2.Whether the Claimants worked during the purported 'unpaid break' from February 2022 to July 2022 and are entitled to salary arrears for that period
- 3.Whether the Claimants had a legitimate expectation of absorption into Phase 2 of the SIMBA Project
- 4.Whether the Claimants were unfairly or unlawfully terminated and what compensation, if any, is due
- 5.What remedies, certificates of service and costs are payable
Key legal issues
#Whether employment lapsed by effluxion of time on 31st October 2021
Although the fixed-term contracts ended on 31st October 2021, the Claimants continued working for the Respondent thereafter, so the engagement did not simply lapse
The court examined email trails between March and July 2022 showing Faith Muthiani being asked for input on the MOU, attending a conference, compiling reports and being introduced to new donors' contacts. The donor's email even anticipated her continued engagement. The court concluded the Claimants were still engaged despite the expiry of the written contracts, and were led to believe they would be absorbed into Phase 2.
Entitlement to salary arrears for the unpaid break period
The Claimants were entitled to six months' salary not paid during the unpaid break, quantified per Claimant at their respective monthly salaries multiplied by six
Having found the Claimants were still engaged and worked during the intervening period while the Respondent sought and secured Phase 2 funding, the court held the Respondent must pay the six months' salary withheld during the unpaid break. It then itemised the amounts for each Claimant, corresponding exactly to the arrears pleaded in the Statement of Claim.
Compensation for the unfairness of leading the Claimants on without engaging them for Phase 2
Each Claimant was awarded three months' salary as compensation for the unfairness they were subjected to, a substantial downward departure from the twelve months sought
The court accepted that the Claimants were made to work for over six months in the hope of another contract that never materialised, and that it was 'unfortunate' they were never brought on board the new project despite being led on until July 2022 when their positions were advertised. It exercised discretion under the compensatory jurisdiction to award three months' salary to each Claimant rather than the twelve months claimed.
Legal principles established
#- Where an employer permits employees whose fixed-term contracts have expired to continue working and leads them to expect absorption into the next phase of a project, they remain engaged and are entitled to salary for that period
- Continued engagement and communications indicating an employee is on board for the next phase create a legitimate expectation of continued employment
- Employees led to work in anticipation of a further contract are entitled to compensation for the unfairness of being strung along and then not engaged
Court orders
#- 1.Payment of six months' salary arrears to each Claimant for the unpaid break period: Faith Muthoni Kshs 900,000; Nancy Gathoni Kshs 533,952; Boniface Nzioka Kshs 533,952; Benjamin Nyaga Kshs 533,952; Jonathan Wangui Kshs 202,356
- 2.Payment of three months' salary as compensation for unfairness to each Claimant: Kshs 1,350,000; Kshs 800,928; Kshs 800,928; Kshs 800,928; and Kshs 303,534 respectively
- 3.The Respondent to issue the Claimants with certificates of service
- 4.The Respondent to pay costs of the suit plus interest at court rates with effect from the date of the judgment
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment and labour relations disputes; suit instituted under Rule 9 of the Employment and Labour Relations (Procedure) Rules, 2016
Relief refused
#Three months' payment in lieu of notice
Contracts provided for one month's notice only; the court did not award notice pay, having treated the engagement as continuing after the fixed term
Four years' salaries representing earnings under Phase 2 of the SIMBA Project until 31st March 2026
The court awarded only six months' arrears and three months' compensation, not projected future salaries for the uncommenced Phase 2
Payment in lieu of leave days for the four-year Phase 2 period
Not awarded; the claim was tied to the rejected four-year future employment claim
Twelve months' salary as compensation for unfair termination
The court awarded three months' compensation instead of the twelve months sought
Costs
The Respondent to pay the costs of the suit plus interest at court rates with effect from the date of the judgment
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.
My reading of these email trails show that despite the claimant's contract having come to an end on 31/10/21 the claimant Faith and team continued to work and were lead to believe that they were going to be absorbed in the next phase
She actually had a legitimate expectation that she was part and parcel of the next phase of the project
In view of the fact that the claimants were made to work with a hope of another contract which never came forth it is my finding that they are entitled to the 6 months' salary not paid during the said period
The respondents will issue the claimants with a certificate of service. The respondents will pay costs of this suit pus interest at court rates w.e.f the date of this judgement
Issues in the judgment
#The Respondent's submissions state the Claimants' pleadings were 'all dated 3rd October 2019', contradicting the judgment's own record that the Statement of Claim was dated 3rd October 2022
The Respondent's submissions describe the hearing dates inconsistently with the judgment's chronology, referring to a hearing 'on 3rd October 2022' while elsewhere recording hearings on 3rd October 2024 and 18th November 2024
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muthiani & 4 others v Salvation Army Kenya East Territory (Employment and Labour Relations Cause E712 of 2022) [2025] KEELRC 574 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/574/eng@2025-02-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.