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ELRCDismissedNot stated in the judgment· [2019] KEELRC 254 (KLR)

Ochanda & another v Judicial Service Commission & 2 others (Cause 2046 of 2015) [2019] KEELRC 254 (KLR)

Employment and Labour Relations Court
29 November 2019
4,165 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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Two claimants formerly engaged as casual support staff in the defunct Industrial Court under the Ministry of Labour sued after their services were terminated. They sought declarations that their casual terms converted to permanent and pensionable employment under Section 37 of the Employment Act, that their termination was unfair, that their rights under Articles 27 and 41 of the Constitution were violated, terminal benefits of Kshs 2,413,500, certificates of service, damages, costs and interest. The 1st Respondent (the Chief Registrar of the Judiciary) denied employing them, contending their engagements were renewed from time to time and terminated with one month's notice by letter dated 1st May 2014. The 2nd and 3rd Respondents confirmed the casual engagement and denied any liability. The court framed four issues: conversion under Section 37, unfair termination, constitutional violations and entitlement to reliefs. It found the claimants never worked a continuous one-month period (working five days a week), so no conversion occurred, and that although an employment relationship transferred to the Judiciary, there was never an employer-employee relationship with the 1st Respondent since the Judicial Service Commission never appointed them, transit not amounting to appointment. Unfair termination and constitutional violation claims were dismissed for want of an employment relationship, lack of precise pleading, and the claimants' voluntary departure from the 2nd Respondent; any claim against the 2nd Respondent was also time-barred. The suit was dismissed with no order as to costs.

Key legal issues

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01

Whether casual employment converted to permanent employment under Section 37 of the Employment Act

Holding

No conversion. The claimants worked five days a week (20 days a month), never a continuous one-month period, after the Circular of 24.6.2008 was issued, and the appointment letters expressly stated the job was purely casual.

Reasoning

Section 37(1) requires continuous working days amounting to not less than one month. The court examined the appointment letters and Circulars from the Office of the President, found both parties never intended permanent employment, and the claimants admitted working Monday to Friday only, meaning under 20 days per month. Their status remained casual both under the 2nd Respondent and the Judiciary.

p. 7
02

Whether an employer-employee relationship existed between the Claimants and the 1st Respondent

Holding

No. The JSC never appointed the claimants; they transited from the 2nd Respondent without any competitive recruitment, and such transit did not amount to appointment.

Reasoning

Article 172 vests employment of Judiciary staff in the JSC, guided by a competitive and transparent process. The claimants were never interviewed or appointed by the JSC. Relying on Trusted Society of Human Rights Alliance v Nakuru Water, appointments made outside due process are unlawful. Hence no employment relationship with the 1st Respondent arose.

p. 8
03

Whether the termination was unfair and unlawful

Holding

The claim fails because there was no employment relationship with the 1st Respondent, and the claim against the 2nd Respondent fails because the claimants left voluntarily in 2012.

Reasoning

Unfair termination remedies presuppose an employment relationship. Having found none with the 1st Respondent, the unfair termination claim collapses. As to the 2nd Respondent, the claimants admitted they voluntarily chose to leave her in 2012 and join the Judiciary.

p. 8
04

Whether Articles 27 and 41 of the Constitution were violated

Holding

Not violated; the allegation was not pleaded with precision or demonstrated.

Reasoning

The court held that constitutional violations must be specifically pleaded and proved. The claimants did not plead with precision or demonstrate how their rights to non-discrimination (Article 27) and fair labour practices (Article 41) were infringed, so the allegation lacked merit.

p. 8

Legal principles established

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  • Casual employment converts to a term contract under Section 37(1) of the Employment Act only where the employee works a continuous period amounting in the aggregate to not less than one month.
  • An employment contract may be written or oral, express or implied; the determinative attributes include payment of wages as consideration and control by the employer.
  • The Judicial Service Commission, not the Judiciary as an institution, is the employer of Judiciary staff, and appointments must follow a competitive and transparent process; transit from one institution to another without JSC involvement does not amount to appointment.
  • Recruitment undertaken outside established policy guidelines and regulations is unlawful.
  • Claims based on violation of constitutional rights must be pleaded with precision and demonstrated.

Court orders

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  1. 1.The suit is dismissed with no order as to costs.

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 27, 41, 47 and 172
  • Employment Act, 2007Sections 2, 35(1)(a), 37(1), 41, 45(4)(b), 47(5), 51 and 90
  • Judicial Service ActNot specified
  • Legal Notice number 38 of 2006 (General Wage Order)Not specified

Cases cited (8)

  • Gilbert Mariera Makori Vs Equity Bank Limited
    (2016) eKLR
  • Agnes Wanjiku & 10 Others Vs Chief Registrar of the Judiciary & Another
    (2017) eKLR
  • Trusted Society of Human Rights Alliance Vs Nakuru Water & Sanitation Services Company & Another
    (2013) eKLR
  • Nelson Onyango Othoo Vs Wilham Kenya Limited
    (2012) eKLR
  • William Basil & 3 Others Vs Colour Print Limited
    (2019) eKLR
  • National Bank of Kenya Limited Vs Hamida Bana & 103 Others
    (2017) eKLR
  • Kenya Airways Limited Vs Aviation & Allied Workers Union & 3 Others
    (2014) eKLR
  • Samson O. Ngonga Vs Public Service Commission & 5 Others
    (2013) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under Article 162(2) of the Constitution (implied by the employment dispute); the judgment itself cites Articles 27, 41, 47 and 172 of the Constitution and the Employment Act, 2007

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, "Ochanda & another v Judicial Service Commission & 2 others (Cause 2046 of 2015) [2019] KEELRC 254 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/254/eng@2019-11-29

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