The question of contract renewal in Kenya: Is “It simply ended”

What Kenyan Law Actually Says About Fixed-Term Renewals

By Ibalai Valarie | Advocate Trainee

Picture this: Josephine has worked for the same NGO for six years, on consecutive one-year contracts renewed every December until this year, when the call never comes. Her contract makes renewal conditional on “satisfactory performance and continued programme funding.” No review was ever done. The funding was, in fact, renewed.

Was there a valid offer of continued employment implied by six years of consistent conduct, or was each December just an informal gesture that never quite became a promise? Unlike a bare Omondi-style lapse, Josephine’s facts sit closer to Mweni: a documented condition, never assessed, contradicted by the employer’s own underlying facts.

That is the test Omondi and Mweni together leave for a court and for Josephine’s advocate to argue.

The legal foundations: what really makes a contract?

Kenyan contract law is received from English common law via the Law of Contract Act, Cap 23. It requires five ingredients: offer, acceptance, consideration, capacity and intention to create legal obligations.

Every renewal dispute asks the same question: did the employer’s conduct amount to a fresh offer of continued employment?

On termination, Section 45 of the Employment Act, 2007 (full text) requires every termination to have a valid reason and fair process. Once challenged, Section 47(5) of the Employment Act (full text) shifts the burden to the employer to prove fairness.

This is anchored in Article 41 of the Constitution of Kenya, 2010 (full text): every person has the right to fair labor practices.

The general rule: Fixed-Term contracts end when they end

In Transparency International – Kenya v Omondi, Civil Appeal 81 of 2018 [2023] KECA 174 (KLR), the Court of Appeal held that a fixed-term contract generally creates no legitimate expectation of renewal, and non-renewal alone is not unfair termination. The contract simply lapses by “effluxion of time.” The employee bears the burden of proving otherwise, and mere hope is not enough.

However, the Court left a door open: expectation can arise where the employer’s own conduct a clear, authoritative representation from someone with power to renew leads the employee to reasonably believe renewal is a foregone conclusion.

 The exception: When the employer’s own conduct speaks

That door was cracked open in Keen Kleeners Limited v Kenya Plantation and Agricultural Workers’ Union, Civil Appeal 101 of 2019 [2021] KECA 352 (KLR). The Court held that a fixed-term contract can create a legitimate expectation of renewal where the employer’s past practice or express promises led the worker to reasonably expect it  e.g., where contracts were renewed repeatedly without discussion.

The principle was applied in Mweni v Child Welfare Society of Kenya, Appeal E040 of 2024 [2025] KEELRC 1951 (KLR). Mweni had worked eleven years on consecutive one-year contracts. Her final contract made renewal conditional on performance, funding, conduct, productivity and HR needs. She was told, without notice or evaluation, that she would not be renewed even though the programme’s funding had been renewed.

The ELRC found the termination unfair: the employer never assessed or documented the very conditions its own contract attached to renewal. Once Mweni raised legitimate expectation, the burden shifted to the employer under Section 47(5) of the Employment Act (full text) and it had nothing to show.

The bigger pattern: Substance over labels

This same instinct drove Kenya County Government Workers’ Union v Embu County Government, Civil Appeal 178 of 2020 [2026] KECA 1481 (KLR). Union members had been kept on successive fixed-term contracts of 6 months to 1 year, doing work that was, in reality, continuous and permanent, while the county called them “casual.”

The Court held that a label in a contract cannot override the true nature of the working relationship, and ordered that the long-serving workers be treated accordingly. Kenyan courts look past what a contract is called to what it actually is.

What you should do

If you are an Employee:

1. Keep records of renewals, appraisals and any promise of renewal, written or oral

2. Check whether your contract conditions renewal on specific factors and keep evidence you met them

3. Ask for decisions and reasons in writing

4. If non-renewed unfairly, you can file an unfair termination claim at the Employment and Labour Relations Court within 3 months

If you are an Employer:

1. Put every renewal decision in writing, with reasons

2. Assess and document the conditions your own contract attaches to renewal

3. Remember: once an employee raises legitimate expectation, the burden to justify your decision is yours under Section 47(5), Employment Act, 2007 (full text)

Key takeaways

Issue	General Rule	Exception
Renewal	No legitimate expectation	Arises from employer’s clear conduct or promise (Mweni)
Burden of proof	On employee to show expectation	Shifts to employer once expectation is raised
Non-renewal	Not unfair termination on its own	Unfair if employer ignores its own renewal conditions

Closing Thought: Running Josephine's Facts Through Mweni

Running Josephine's facts through the same four factors that decided Mweni: first, a pattern of consistent renewal — six consecutive Decembers, just as Mweni had eleven years of them. Second, a documented condition attached to renewal — Josephine's contract, like Mweni's, does not leave renewal to chance; it names specific, checkable conditions. Third, whether those conditions were actually assessed — in Mweni, they were not, and the same appears true for Josephine, since no performance review was ever conducted. Fourth, whether the employer's own underlying facts contradict the non-renewal — Mweni's funding had been renewed despite her termination; Josephine's funding was too.

On all four counts, Josephine's case does not look like a bare Omondi lapse-by-effluxion-of-time. It looks like Mweni: a contract that promised to consider something specific, and an employer that never showed its work. Whether that is enough to win will still turn on the evidence but the shape of the argument is already there.

 

Is “it simply ended” the perfect crime?

Not anymore. Omondi set the rule, but Mweni and Embu County reminded us: courts will look at what you actually did, not just what you called it.

 

Ibalai Legal is a Nairobi-based online legal practice on a mission to make law accessible to every Kenyan. Through Be In The Know With Ibalai Legal, we break down complex legal concepts into clear, practical content for individuals, startups and SMEs. 

 

Catch you in the next blog!

 

Disclaimer- The information provided is for general informational purposes only and should not be considered as professional advice. Please consult a qualified professional for specific guidance.