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Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No 323 of 2017· [2019] KEELRC 1177 (KLR)

Everlyne Atieno Owuor & 37 others v Migori County Government & another [2019] KEELRC 1177 (KLR)

Employment and Labour Relations Court
9 July 2019
960 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court converted 38 casual workers' endless three-month contracts into a path to permanent employment after 30 days if the county fails to verify their qualifications.

What this practically means

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Executive summary

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Thirty-eight claimants sued Migori County Government and Migori County Public Service Board alleging violation of their right to fair labour practices through prolonged engagement as casual workers on three-month renewable contracts, and sought confirmation to permanent employment plus costs. The respondents filed a defence asserting the claimants were engaged on fixed-term contracts whose dues were settled on expiry and that renewals required fresh application; they also indicated a feasibility audit of casual employees was underway. At trial, CW1 testified she was employed as a casual office messenger in 2012 and confirmed the claimants remained on renewable three-month contracts, though she conceded under cross-examination that the claimants had signed fixed-term contracts freely and had received salary increments. Following a court-ordered referral to conciliation, the County Labour Officer filed a report attaching an agreement signed on 23rd November 2017 under which the claimants would undergo a verification exercise for confirmation to permanent employment based on minimum qualifications within thirty working days. The court found the dispute had been settled by that agreement, adopted its terms, and entered judgment for the 38 claimants. It ordered a verification exercise to be conducted and completed within 30 days of judgment with a report filed, failing which all 38 employees would be deemed permanent and continuous employees entitled to minimum benefits under the Employment Act, 2007 and better existing benefits. The respondents were ordered to pay the claimants' costs. Judgment was delivered by Mathews N. Nduma, Judge, on 9th July 2019.

Key legal issues

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01

Effect of the recorded conciliation agreement of 23rd November 2017

Holding

The agreement settled the issues in dispute and the court adopted it as the basis of judgment

Reasoning

Following a court-ordered referral to conciliation, the County Labour Officer filed a report attaching a signed certificate of agreement. The parties agreed that claimants would undergo a verification exercise within thirty working days based on minimum qualifications. The court found the issues were thereby settled and adopted the agreement's terms, incorporating them into its judgment with a default consequence for non-compliance.

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02

Whether prolonged serial three-month fixed-term contracts constitute unfair labour practice

Holding

The continued short-term contracts, coupled with uncontroverted testimony, justified judgment in favour of the claimants, enforceable through the verification mechanism

Reasoning

CW1's uncontroverted testimony confirmed the claimants remained in employment on renewable three-month contracts despite long service. The court held this placed them at a disadvantage relative to permanent and pensionable employees, supporting relief keyed to confirmation to permanent employment subject to a qualification-based verification exercise.

p. 3

Legal principles established

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  • Where parties record a conciliation agreement filed in court, the court may adopt its terms as its judgment
  • Continued engagement of employees on short three-month renewable contracts over a long period places them in a difficult and disadvantageous position compared to permanent employees

Court orders

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  1. 1.The 38 claimants to undergo a verification exercise to confirm their suitability for confirmation to permanent employment based on minimum qualification (Form IV Certificate) and other relevant professional certificates obtained
  2. 2.The respondent to conduct and complete the exercise within 30 days of the judgment and file a report accordingly, failing which all 38 employees shall be deemed to be on permanent and continuous employment entitled to all minimum benefits under the Employment Act, 2007 and any better benefits already enjoyed
  3. 3.The respondents to pay the costs of the suit

Authorities

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Legislation

  • Employment Act2007 (minimum benefits)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (not expressly cited by provision in the judgment)

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, "Everlyne Atieno Owuor & 37 others v Migori County Government & another [2019] KEELRC 1177 (KLR)", Case Analysis (2019). Cause No 323 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1177/eng@2019-07-09

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