Technical University of Mombasa & 2 others v Kenya Union of Domestic Hotels, Educational Institutions and Hospital Workers [2019] KECA 814 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that fixed-term university workers were not casual employees, so automatic conversion to permanent jobs does not apply.
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 respondent's members were engaged on casual or fixed-term contractual basis
- 2.Whether Section 37 of the Employment Act applied to convert their terms of employment
- 3.Whether the appellants breached Clause 4.1.2(b) of the CBA dated 17th March 2015 and Clause 10 of the national CBA
- 4.Whether the appellants' conduct violated the members' constitutional right to fair labour practices, or whether the dispute was purely contractual
Key legal issues
#Character of the members' employment - casual vs fixed-term
The members were engaged on fixed-term contracts; there was no evidence of casual employment and the appellants never admitted it.
The Court re-appraised the record under its first appellate mandate and found only one-year contracts on record. The definition of a casual employee under Section 2 of the Employment Act requires payment at the end of each day for engagements not exceeding twenty-four hours, which did not fit the members. The burden of proving casual status rested on the respondent and was not discharged.
Inapplicability of Section 37 of the Employment Act
Section 37, which exclusively deals with conversion of casual employment, was inapplicable because the members were not casual employees.
Having found no evidence of casual engagement, the provision the learned Judge invoked could not sustain the conversion order. Section 37 deems a casual employee's contract to be monthly only where the statutory thresholds of continuous work are met, conditions that had no bearing on members serving one-year fixed-term contracts.
Interpretation of Clause 4.1.2(b) of the CBA
Conversion to permanent employment was conditional on availability of vacancies, to be evidenced by advertisement, and on competitive recruitment; it was not automatic.
The Court applied objective principles of contractual interpretation, holding that the word 'considered' in the clause connotes a process rather than an entitlement. Vacancies could not be inferred merely from the perceived importance of the employees' roles; proof required advertisements or notices per Clause 4.1.1(d). The respondent tendered no evidence that vacancies had arisen.
Constitutional petition versus contractual dispute
The grievances raised contractual, not constitutional, issues and should have been pursued through the statutory/contractual framework.
Adopting Lenaola, J.'s reasoning in Bernard Murage, the Court held that not every violation of the law must be raised as a constitutional issue, and where an alternative statutory remedy exists it should be pursued first. The dispute over contract terms and CBAs did not disclose a violation of fair labour practices.
Legal principles established
#- The onus lies on a party alleging casual employment to prove it; where only fixed-term contracts are evidenced, Section 37 of the Employment Act on conversion of casual employment does not apply.
- Conversion of temporary/contract employees to permanent terms under Clause 4.1.2(b) of the CBA is not automatic; it requires proof of available vacancies and subjection of employees to competitive recruitment.
- Where a dispute is essentially contractual, it should not be entertained as a constitutional petition where a statutory remedy exists.
Court orders
#- 1.Appeal allowed
- 2.Judgment of the ELRC dated 11th May 2018 set aside in its entirety
- 3.Substituted with an order dismissing the respondent's petition
- 4.No order as to costs both in the appeal and in the ELRC
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court at Mombasa
- Petition No. 9 of 2017
- Jurisdiction invoked
- First appellate jurisdiction under the Court of Appeal Rules (Rule 29(1)(a)), the appeal arising from the Employment and Labour Relations Court
Relief refused
#Respondent's petition for declarations of unconstitutional employment practices and mandatory conversion of members to permanent and pensionable terms
No evidence members were casual employees; conversion was conditional on vacancies and competitive recruitment; dispute was contractual, not constitutional
Costs
This being an employment matter we make no order as to costs both in this appeal and the ELRC.
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.
The onus was on the respondent to prove that indeed its members were engaged on casual basis which they failed to do.
even where such vacancies arise the respondent’s members were not entitled to automatic engagement on permanent and pensionable terms. They were to be subjected to competitive recruitment process like other applicants.
Where there exists an alternative remedy through statutory law, then it is desirable that such a statutory remedy should be pursued first.
We set aside the judgment dated 11 th May, 2018 in its entirety and substitute the same with an order dismissing the respondent’s petition. This being an employment matter we make no order as to costs both in this appeal and the ELRC.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Technical University of Mombasa & 2 others v Kenya Union of Domestic Hotels, Educational Institutions and Hospital Workers [2019] KECA 814 (KLR)", Case Analysis (2019). Civil Appeal No. 108 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/814/eng@2019-03-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.