Ochanda & another v Judicial Service Commission & 2 others (Cause 2046 of 2015) [2019] KEELRC 254 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether casual employment converted to permanent employment under Section 37 of the Employment Act
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.
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.
Whether an employer-employee relationship existed between the Claimants and the 1st Respondent
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.
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.
Whether the termination was unfair and unlawful
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.
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.
Whether Articles 27 and 41 of the Constitution were violated
Not violated; the allegation was not pleaded with precision or demonstrated.
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.
Legal principles established
#- 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
#- 1.The suit is dismissed with no order as to costs.
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.