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Court of AppealDismissedCivil Appeal 261 of 2020

Kenyatta University v Esther Njeri Maina

Court of Appeal
4 November 2022
2,156 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that repeatedly renewing short-term contracts cannot disguise a decade-long worker as casual—her job is permanent and pensionable.

What this practically means

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Executive summary

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The Court of Appeal (Musinga, Sichale and Omondi, JJA) dismissed Kenyatta University's appeal against a judgment of Wasilwa, J of the Employment and Labour Relations Court, which had declared that the respondent's right to fair labour practices was infringed and that her employment was permanent and pensionable. The respondent, engaged as a secretary from August 2009, worked continuously for over ten years on serial short-term and seasonal contracts, without sick or maternity leave entitlements. The appellant, contending it operates a semester system with peak and off-peak staffing needs, argued that a court cannot convert a fixed-term contract into permanent employment and that the judge ignored the signed contracts. The court rejected these arguments, holding that serially renewed three-month contracts were a roundabout way of avoiding the Employment Act's provisions on casual employment, and that an employer cannot disguise casual employment on the basis of peak and off-peak sessions. Applying section 37(1) of the Employment Act, the court affirmed that the respondent's employment was not casual or temporary but permanent and pensionable, and that her treatment as a non-permanent employee amounted to unfair labour practices infringing her constitutional rights. The court, however, found no violation arising from her transfer to Kitui, an employer being at liberty to transfer staff per exigencies of duty. The appeal was dismissed with costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the learned judge misapprehended section 37 of the Employment Act
  2. 2.Whether the learned judge erred in ignoring the contract between the appellant and the respondent
  3. 3.Whether the learned judge failed to consider the pleadings, the evidence and the relevant authorities relied upon

Key legal issues

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01

Whether section 37 of the Employment Act was misapprehended by the trial judge

Holding

No. Section 37(1) deems the contract of a casual employee who works continuously for the equivalent of one month or more to be one where wages are paid monthly; the respondent's over ten years of service brought her within the section.

Reasoning

The court set out section 37(1) and the definition of a casual employee in section 2, and found that the respondent's continuous service since 2009 meant she could not be treated as casual. Serial three-month contracts renewed on expiry were a device to evade the statute, and the trial judge correctly declared the employment permanent and pensionable under section 37(1).

p. 4
02

Whether the court erred in ignoring the signed fixed-term contracts

Holding

No. The signed contracts did not displace the statutory deeming provision; the reality of the relationship prevailed over the form of the contracts.

Reasoning

The appellant argued a court cannot rewrite a contract for parties. The court held the contention that the respondent signed fixed-term contracts flew in the face of the actual situation: she had served continuously for over ten years, and the contracts were a roundabout way of avoiding the casual employment provisions. The respondent's evidence was largely unchallenged after cross-examination was dispensed with.

p. 4
03

Whether the respondent's right to fair labour practices was violated

Holding

Yes. Retaining her in essence as casual employment and denying her the rights of a permanent employee amounted to unfair labour practices infringing her constitutional rights.

Reasoning

The court agreed with the trial judge that treating the respondent as a non-permanent employee for over ten years was tantamount to unfair labour practices. However, the claim that her transfer to Kitui violated her rights failed, as an employer may transfer staff per exigencies of duty, and no cross-appeal was filed.

p. 5

Legal principles established

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  • A court cannot allow an employer to use serially renewed short-term contracts as a roundabout way of avoiding the provisions of the law on casual employment.
  • An employer cannot keep an employee under the guise of casual employment on the basis of peak and off-peak operational sessions; such treatment is an unfair labour practice.
  • On a first appeal, the court reconsiders and evaluates the evidence itself and draws its own conclusions, while making allowance for not having seen or heard the witnesses.

Court orders

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  1. 1.The appeal is dismissed with costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority
majority
On appeal from
Employment and Labour Relations Court of Kenya at Nairobi
ELRC Constitutional Petition No. 133 of 2018
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (Selle v Associated Motor Boat Co principles applied); no specific constitutional/statutory provision cited

Relief refused

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Setting aside the declaration that the respondent's employment was permanent and pensionable

The court agreed with the trial judge that section 37(1) of the Employment Act converted the casual employment to a term contract and that the relationship had assumed permanency

Finding that the respondent's transfer to Kitui violated her rights

An employer is at liberty to transfer staff depending on exigencies of duty; no violation found

p. 5

Costs

The appeal was dismissed with costs to the respondent (costs of the appeal to the respondent; the trial court had also awarded the respondent costs of the petition).

Quotable passages

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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 signing of contracts of 3 months which were renewed on expiry is a roundabout way of avoiding the provisions of the law on casual employment.
p. 4Statutory protection against sham fixed-term contracts
In our view, an employer cannot have an employee under the guise of being a casual on the reasoning that it has peak and off-peak sessions.
p. 4Peak/off-peak staffing is no justification for casualisation
She was treated as a non-permanent employee and this is tantamount to unfair labour practices and thus denying her all the rights of a permanent employee.
p. 5Constitutional right to fair labour practices
Being an employee of the appellant, the latter is at liberty to transfer its staff depending on exigencies of duty.
p. 5Employer's power of transfer
It is hereby dismissed with costs.
p. 5Final orders - dismissal of the appeal

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kenyatta University v Esther Njeri Maina", Case Analysis (2022). Civil Appeal 261 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1201/eng@2022-11-04

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.