Kenyatta University v Thomas & 25 others (Civil Appeal E494 of 2022) [2025] KECA 1014 (KLR)
The bottom line
#Kenyatta University workers won conversion from casual to monthly contracts, but the Court of Appeal trimmed their victory: no discrimination finding, no equal terms, overtime limited to three years.
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 Kenyatta University discriminated against the respondents in the manner it engaged them
- 2.Whether, in the period preceding 2018, the respondents were on fixed term contracts or in casual employment, and the effect of section 37 of the Employment Act on that engagement
- 3.Whether the declaration nullifying the internal memo of 9th July 2018 could operate in rem beyond the parties before the court
- 4.The period for which unpaid overtime dues could be awarded, having regard to record-keeping and limitation considerations
Key legal issues
#Whether the University discriminated against the respondents contrary to Article 27 of the Constitution and section 5 of the Employment Act
No discrimination was established; the respondents belonged to a distinct cadre of non-core, impermanent workers, so the differential treatment rested on a reasonable distinction rather than an impermissible ground.
Discrimination requires that the differential treatment be on account of an impermissible ground. The University explained that the respondents, being electricians, plumbers, painters, masons and carpenters engaged in non-core infrastructure work, belonged to a different cadre from core academic staff. The respondents did not seriously challenge this, amounting to a concession. Equality permits differentiation; the trial judge's discrimination finding was inconsistent with her own observation that the respondents were distinct in the nature of their engagement.
Whether the respondents were casual employees or fixed-term contract employees
The evidence supported casual employment despite the University's assertion of fixed-term contracts; the University's own pleadings and the 2018 'formalisation' memo confirmed the casual character of the engagement.
The University's reply to the petition described the engagement as intermittent and informal; its correspondence consistently referred to the respondents as casuals; and the purpose of the 9th July 2018 memo was to issue contracts to 'staff on casual terms'. Tax records showed near-continuous employment with only short breaks, which do not alter the true character of the arrangement.
The scope and effect of section 37 of the Employment Act
Section 37(1) converts casual employment to a monthly-paid term contract with notice protection, and section 37(3) confers statutory terms and conditions; it does not convert the employee into a permanent employee, nor justify an order placing them on terms similar to other employees.
The primary remedy is the deeming in subsection (1), coupled with notice under section 35(1)(c) and statutory entitlements under subsection (3). The wider power under subsection (4) to vary terms exists but must be exercised only where circumstances justify, with reasons. Given the trial judge's own recognition of the respondents' unique tasks, ordering terms similar to other employees went beyond what the section justified.
Whether the nullification of the 9th July 2018 memo could bind persons outside the suit
No. The petition was not a representative suit and no relief in rem was sought or could be granted; the nullification applies only to the respondents.
The University objected that nullifying the memo generally affected thousands of persons not before the court. The Court agreed that the declaration could only operate in personam against the University in favour of the respondents before the court.
The temporal limit on the overtime award
The overtime award is limited to a period not exceeding three years before the petition was filed, in line with section 53 of the Labour Institutions Act and section 74 of the Employment Act.
Section 74 requires employers to keep records, and permits inspection of records for the preceding thirty-six months. The purpose of limitation is that a defendant should not be made to meet a claim it cannot properly defend because of the passage of time in gathering evidence.
Legal principles established
#- Casual employees engaged for long continuous periods are deemed, under section 37(1) of the Employment Act, to be on monthly-paid term contracts protected by notice provisions; but conversion under section 37 does not of itself make the employee permanent.
- Short artificial breaks in an otherwise continuous casual engagement do not defeat conversion under section 37 of the Employment Act.
- A court may only exercise the power under section 37(4) of the Employment Act to vary terms of service and declare terms consistent with the Act where circumstances justify it, and must give reasons for such variation.
- Equality does not connote exact equal treatment; differential treatment grounded on a reasonable distinction in the nature of work is not discrimination.
- Overtime claims in employment disputes are limited, in line with section 53 of the Labour Institutions Act and section 74 of the Employment Act, to a period not exceeding three years before the filing of the claim.
- A declaration in constitutional proceedings binds only the parties before the court unless a decision in rem is sought and is warranted.
Court orders
#- 1.Quashing of declaration (b) of the judgment of 10th December 2020
- 2.Partial quashing of declaration (d) of the judgment of 10th December 2020, which shall only apply to the respondents
- 3.Limitation of the overtime dues payable under order (f) to a period of 3 years before the petition was filed
- 4.Each party to bear their own costs both in the appeal and in the court below
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court
- Not stated in the judgment as provided
- Jurisdiction invoked
- First appellate jurisdiction over the Employment and Labour Relations Court (the judgment does not cite a specific provision; the Court describes itself as 'a first appellate court')
Relief refused
#Declaration that the University discriminated against the respondents
The respondents were engaged in non-core, impermanent duties distinct from core employees, so the differential treatment was not on an impermissible ground
Order requiring the University to engage the respondents on terms and conditions similar to other employees
Given the distinct nature of their tasks, it was enough to give effect to section 37(1) of the Employment Act
Nullification of the memo of 9th July 2018 in respect of persons beyond the parties
The petition was not a representative suit and the respondents never sought a decision in rem
Overtime dues beyond three years before the filing of the petition
Having regard to sections 53 of the Labour Institutions Act and 74 of the Employment Act, and the rationale of limitation periods
Costs
Parties shall bear their own costs, both here and of the court below.
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.
In the end, this appeal is partially successful. We quash declaration (b) and partially declaration (d) of the judgment of 10th December 2020. Regarding declaration (d), it shall only apply to the respondents here. As to the order in (f), the dues payable shall be limited to 3 years before the petition was filed. Parties shall bear their own costs, both here and of the court below.
Equality does not connote exact equal treatment. It simply means uniformity of treatment under the same or similar set of circumstances. Intrinsic in the concept of equality is the rule of differentiation.
To hold otherwise would encourage crafty employers to simply impose artificial breaks in this type of arrangement so as to go round the rigours and reality of section 37 of the Act.
this can only be done where circumstances so justify, and the court must give reasons for making such variation.
The respondents never sought a decision in rem and none could be granted.
An important objective of a provision of limitation of time is that a defendant should not be made to meet a claim which the defendant cannot properly defend because of inability, due to passage of time, to gather and mount evidence or recall events.
It is to re-evaluate, re- assess and reanalyze the evidence and draw our own conclusions.
Issues in the judgment
#The judgment refers inconsistently to the impugned internal memo, dated 9th July 2018 in the body but described in the grounds of appeal as 'the memo dated 9th July 2019'
The judgment states the University 'did not unequivocally deny' the employment relationship spanning 11 to 20 years, though the introductory paragraph describes periods 'ranging from 10, 11 and 20 years' and the respondents elsewhere claim 10 to 12 years
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mwololo v Sana Industries Company Ltd (Appeal E215 of 2025) [2026] KEELRC 2445 (KLR)[2026] KEELRC 2445 (KLR)31 Aug 2026followed
- Mwamburi v Taita Taveta University (Employment and Labour Relations Cause E005 of 2024) [2026] KEMC 139 (KLR)[2026] KEMC 139 (KLR)23 Jun 2026applied
- Insight Management Consultants Limited v Silungi (Appeal E066 of 2025) [2025] KEELRC 2553 (KLR)[2025] KEELRC 2553 (KLR)25 Sept 2025followed
Cite this brief
#Cite this brief
Caselaw, "Kenyatta University v Thomas & 25 others (Civil Appeal E494 of 2022) [2025] KECA 1014 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1014/eng@2025-05-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.