Mayienda v Nyangena Hospital Limited (Appeal E030 of 2024) [2025] KEELRC 1273 (KLR)
The bottom line
#Kenya's Employment Court confirmed that when a fixed term contract simply expires, an employer owes no duty to renew it or compensate the worker beyond what the contract allows.
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 trial court erred in not appreciating that there were two separate and concurrent contracts of employment (oral and written)
- 2.Whether the respondent's act of allegedly forcing the appellant to sign the fixed term contract amounted to unfair termination of the oral contract and an unfair labour practice under Article 41 of the Constitution
- 3.Whether alteration of the appellant's terms from permanent to fixed term amounted to a unilateral variation and unfair labour practice
- 4.Whether the trial court failed to appreciate the purport of Section 50 of the Employment Act on the appellant's length of service
- 5.Whether the trial court disregarded the appellant's written submissions
- 6.Whether the reliefs sought (declaration, compensation, service pay, overtime, public holidays, rest days, leave, notice pay, gratuity) were merited
Key legal issues
#Whether the appellant proved coercion/duress in the signing of the fixed term contract
No - coercion was neither pleaded nor particularised and appeared only in cross-examination as an afterthought
The alleged coercion first surfaced in cross-examination, was absent from the statement of claim and witness statement, and no particulars of who coerced the appellant, where, and how were given. The trial court found no evidence of coercion. A threat not to pay salary is a breach of contract with an adequate legal remedy, not duress. The appellant also took no steps to avoid the contract, acquiescing by conduct.
Whether there were two separate and concurrent contracts of employment
No - the issue was unpleaded, and in any event the new written contract merged and discharged the earlier oral contract
The two-contracts issue was neither pleaded nor submitted on before the trial court, so parties were bound by their pleadings. On the merits, when the parties executed the new contract effective 1st November 2020, the earlier contract's terms were merged into the new one and discharged. There was accordingly only one contract, a one-year fixed term contract, non-renewable and terminated on effluxion of time.
Whether non-renewal of the fixed term contract amounted to unfair termination
No - the contract ended by effluxion of time and the employer owed no obligation to renew or give notice
The Court of Appeal authorities establish that a fixed term contract expires at the agreed term with no obligation to renew unless the contract or the employer's conduct creates such an obligation or a reasonable expectation of renewal. Here the respondent issued a non-renewal notice dated 1st October 2021 and never intimated that renewal was forthcoming, so non-renewal was not unfair termination.
Whether the respondent unilaterally varied the appellant's terms of employment
No - the respondent adduced credible evidence of sensitization and the appellant signed the attendance sheet and the contract
The internal memo dated 13th October 2020 invited employees to a sensitization meeting; the appellant signed the attendance sheet and later signed the contract on 28th November 2020, by which time her October salary had been paid and she had time to consider the contract and seek independent advice. There was accordingly no unilateral variation; parties merely reduced agreed terms into writing.
Whether the trial magistrate disregarded the appellant's submissions
No - the magistrate considered pleadings and submissions and addressed the issues raised; the appellant did not particularise what was ignored
The trial court expressly stated it had considered the pleadings and written submissions and addressed the same two issues the appellant raised. Submissions are neither pleadings nor evidence, and the appellant failed to identify what the magistrate overlooked. Grounds 6 and 7 therefore failed.
Legal principles established
#- A first appellate court must re-evaluate the evidence and arrive at its own conclusions, mindful that it neither saw nor heard the witnesses
- Parties are bound by their pleadings and courts may only pronounce judgment on issues arising from the pleadings
- A party alleging duress or coercion must plead it with clarity, establish it with precision, and show it was exerted by the other contracting party
- A fixed term contract ends at expiry and there is no obligation on the employer to renew unless the contract or the employer's conduct creates such obligation or expectation
- A threat not to pay salary does not constitute duress as it is neither a crime nor a tort and the employee has an adequate legal remedy
- In the absence of fraud or misrepresentation, a person who signs a contractual document is bound whether or not they read it
- A new contract of employment merges and discharges the earlier contract
- Submissions are neither pleadings nor evidence and cannot take the place of evidence
- A party who alleges coercion but takes no step to avoid the contract and serves its full term cannot later raise the issue, being estopped by conduct
Court orders
#- 1.The appeal is dismissed
- 2.The trial court's finding that the non-renewal of the fixed term contract did not amount to unfair termination is affirmed, including the award of one year's leave (Kshs.14,560.00) and certificate of service
- 3.Parties shall bear their own costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court (Employment and Labour Relations) - trial court presided over by a learned trial magistrate
- Not stated in the judgment as provided
- Jurisdiction invoked
- First appellate jurisdiction over the trial court's judgment (Employment and Labour Relations Court); the judgment invokes the Court of Appeal's restatement of the duty of a first appellate court
Relief refused
#Declaration that termination of employment was unfair and compensation of Kshs.1,615,288.72 for unfair termination
The fixed term contract terminated by effluxion of time; non-renewal did not amount to unfair termination; coercion not proved
Service pay
The appellant was a registered NSSF member with deductions remitted, disqualifying her under Section 35(6)(d) of the Employment Act
Public holidays pay (Kshs.130,500)
No evidence of which public holidays the appellant worked without pay
Rest days pay (Kshs.417,594.12)
The appellant admitted working six days a week, entitling her to a rest day; specific rest days worked not tabulated
Overtime pay
Claim lacked particulars; no evidence of hours worked or unpaid extra hours
Gratuity
Not provided for in the contract of employment; payable at employer's discretion
Pay in lieu of notice and salary for 18 years
Non-renewal notice was given and no obligation to renew existed; no outstanding salary arrears
Costs
Parties shall bear their own costs of the appeal
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.
Flowing from the foregoing analysis, it is discernible that the instant appeal is for dismissal and it is accordingly dismissed.
Parties shall bear their own costs of the appeal.
It is now a settled principle of law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put another way, which is at variance with the averments of the pleadings goes to no issue and must be disregarded
coercion must be pleaded with clarity and established with precision
In the court’s view a threat not to pay salary does not qualify as duress as it’s a breach of the contract of employment for which the employee has an adequate legal remedy
a fixed term contract is for the term agreed upon by the parties and there is no obligation on the part of the employer to renew the contract unless the contract itself creates such an obligation or the employer’s conduct creates the impression that renewal was forthcoming, where the employee could invoke the doctrine of reasonable expectation
Submissions, we reiterate, do not constitute evidence at all
The appellant took no step to avoid the contract of employment and by conduct acquiesced to the respondent’s action, if there was any coercion and cannot arguably raise the issue after serving the entire term of the contract by dint of the doctrine of estoppel by conduct.
This being a first appeal, the function of the court is that of a retrial as the court is enjoined to reconsider and re-evaluate the evidence on record and arrive at its own conclusions being mindful that it has neither seen nor heard the witnesses
Issues in the judgment
#The judgment contains inconsistent dates/typos, e.g. sensitization memo date and the respondent's pleaded employment start year are given inconsistently within the judgment itself
Counsel's submission misstates the year of the contract, reproduced in the judgment: 'the contract dated 1st November, 2002 was for one (1) year' where context indicates 2020
The case title, case number and neutral citation are not reproduced in the judgment excerpt provided
Award figure inconsistency: the judgment records both Kshs.14,450 and Kshs.14,560.00 for the leave award
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mayienda v Nyangena Hospital Limited (Appeal E030 of 2024) [2025] KEELRC 1273 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1273/eng@2025-05-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.