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ELRCPartially AllowedPetition No. 93 of 2018· [2021] KEELRC 18 (KLR)

Humphrey Nyaga Thomas & 25 others v Kenyatta University [2021] KEELRC 18 (KLR)

Employment and Labour Relations Court of Kenya
10 December 2021
7,425 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled that long-serving 'casual' workers at Kenyatta University automatically became permanent staff, winning damages and full employment rights.

What this practically means

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Executive summary

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Twenty-six petitioners engaged by Kenyatta University between 1998 and the petition date, variously as painters, electricians, plumbers, masons and carpenters during infrastructural development, petitioned the ELRC claiming they had been unlawfully retained as casual employees for 10 to 12 years without written contracts, statutory payment statements or leave, and challenged an internal memo dated 9th July 2018 directing them to sign seasonal contracts that reduced their monthly wage from Ksh.28,038 to Ksh.19,233. The respondent maintained the petitioners were casual or three-month contract workers engaged intermittently for non-core construction work, that government policy barred creating permanent and pensionable posts, and that the suit was improperly brought as a constitutional petition. The court framed three issues: propriety of the petition, violation of rights, and remedies. It found the petition properly couched as a constitutional claim. Applying section 2 and section 37 of the Employment Act, 2007, it held the petitioners worked far beyond the 24-hour limit defining casual labour and were paid monthly; the respondent failed to produce written contracts as required by sections 10(6) and (7), so their casual employment converted automatically to term employment. The memo of 9th July 2018 was declared null and void, changing employment terms without consent being an unfair labour practice. The court found violations of Articles 27, 28, 41 and 43, awarded each petitioner Ksh.280,380 in damages, directed issuance of contracts on terms similar to other employees within 30 days, and tabulation and payment of overtime. Claims for wages from July 2018 failed for want of evidence of resumed work, as did the mandatory order on joining a trade union. The petition substantially succeeded with costs.

Key legal issues

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01

Whether the petition was a proper constitutional petition

Holding

The court held the petition was properly before it as it was couched under violation of constitutional rights and the orders sought related to alleged violations.

Reasoning

The respondent argued employment claims belong in a memorandum of claim, not a petition. The court noted the core of the petition was fair remuneration, reasonable working conditions and equality in employment, i.e. Article 41 rights, and that the respondent itself acknowledged the essence of the petition as a constitutional rights claim which the court must address on the merits.

p. 5
02

Whether the petitioners were casual employees or their employment had converted by operation of law

Holding

The petitioners' casual employment automatically converted to term employment under section 37 of the Employment Act, 2007, protected with rights and benefits under the Act.

Reasoning

Section 2 defines a casual employee as one paid at the end of each day and engaged for not longer than 24 hours at a time. The petitioners worked for 10 to 12 years, paid monthly, with statutory deductions. The respondent failed to produce written contracts as required under sections 10(6) and (7), shifting the burden of proving terms of employment to it. The petitioners produced work cards, bank statements, NSSF remittances and attendance registers.

p. 5
03

Whether the memo dated 9th July, 2018 and the seasonal contracts were lawful

Holding

The memo was declared null and void and the seasonal contracts suspended, as changing terms of employment without consent is an unfair labour practice.

Reasoning

The respondent did not follow section 13 of the Act in changing employment particulars and obtained no consent from the petitioners. Reducing wages from Ksh.28,038 to Ksh.19,233 without justification violated Article 41 and section 3(6) of the Act. Any new terms must comply with sections 9, 10 and 29 of the Act and issue only with the employees' full knowledge, acceptance and consent.

p. 7
04

Whether the petitioners' constitutional rights were violated and what damages are due

Holding

The court found violation of Articles 27, 28, 41 and 43 (fair labour practices, equality, dignity, property) and awarded each petitioner damages of Ksh.280,380, being one month's pay at the daily rate of Ksh.934.60 x 30 x 10 years.

Reasoning

The respondent maintained the petitioners as casuals for 10 to 12 years, denying them privileges that would have accrued on conversion, while other employees enjoyed better terms - discrimination as defined in Barclays Bank of Kenya v Gladys Muthoni. Damages are available under section 12 of the ELRC Act and section 49 of the Employment Act, and the facts were distinguishable from Peter Gachenga Kimuhu v Kenol Kobil.

p. 8
05

Whether the respondent could rely on public interest and prudent use of exchequer funds

Holding

Public interest cannot justify violating constitutional and legal rights; as a public institution the respondent bears greater responsibility in the public interest.

Reasoning

The respondent argued Article 201(d) required prudent use of public funds and that conversion would compel it to retain unneeded staff. The court rejected this, holding the respondent, a public university with benefit of legal advice, chose the wrong mode of engagement and cannot excuse unfair labour practices under the guise of saving taxpayers' money.

p. 7

Legal principles established

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  • Casual employment automatically converts to term employment under section 37 of the Employment Act where the employee works beyond one month and wages are paid monthly
  • Changing the nature of employment without employee consent is an unfair labour practice prohibited under the Constitution
  • A public employer cannot justify violation of employees' constitutional and legal rights on grounds of saving public funds
  • Retaining employees as casuals for long periods while others enjoy better terms amounts to discrimination in employment

Court orders

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  1. 1.Declaration that the petitioners' employment with the respondent is not casual but converted by operation of the law and protected with rights and benefits under the Employment Act, 2007
  2. 2.The respondent shall issue the petitioners with contracts of employment with terms and conditions similar to those issued to other employees and without placing them at a disadvantage for being or not being members of the trade union, within the next 30 days
  3. 3.The respondent shall re-engage the petitioners on suitable terms and conditions and without putting them at a disadvantage for not being unionised though they are unionisable
  4. 4.Declaration that the memo dated 9th July, 2018 is null and void and of no legal force
  5. 5.Declaration that the petitioners' constitutional rights have been violated by the respondent and damages awarded each at Ksh.280,380
  6. 6.Overtime payments due and unpaid to date shall be tabulated by the respondent and paid to the petitioners within 30 days and failure to which the petitioners shall submit their tabulations for confirmation by the court
  7. 7.The dues owed shall be paid as directed and failure to pay the same shall accrue interests at court rate from the date due and until paid in full
  8. 8.Costs awarded to the petitioners
Jurisdiction invoked
Article 162(2) of the Constitution establishing the Employment and Labour Relations Court (employment and labour relations disputes); Employment and Labour Relations Court Act, 2011, section 12

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, "Humphrey Nyaga Thomas & 25 others v Kenyatta University [2021] KEELRC 18 (KLR)", Case Analysis (2021). Petition No. 93 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/18/eng@2021-12-10

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