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ELRCPartially AllowedPetition (ELRC, Eldoret) - as stated in judgment, not numbered· [2023] KEELRC 1527 (KLR)

Bett & 27 others v County Government of Uasin Gishu & 2 others (Petition 20 of 2020) [2023] KEELRC 1527 (KLR)

Employment and Labour Relations Court
15 June 2023
MOMaureen Onyango
2,474 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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Casual workers employed continuously for over six years by Nandi County are legally regular employees entitled to full Employment Act protections.

What this practically means

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Executive summary

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The Petitioners, general labourers (cleaners, clerks, cooks, revenue officers, groundsmen and others) engaged by the County Government of Nandi from January 2014 on monthly pay of Kshs 6,000, petitioned under Articles 22(2)(c), 41 and 258(2)(c) of the Constitution and Section 37 of the Employment Act, 2007. They sought declarations that their rights were violated and that they were permanent employees, nullification of their seasonal contracts, injunctive orders against termination and replacement labour, conversion of their terms of service, freedom to join a trade union, payment of dues including the consolidated minimum wage, and costs. The Respondents entered appearance and filed submissions but no response to the Petition. The court framed two issues: the nature of the employment and whether the remedies sought lie in law. Finding it common ground that the Petitioners had worked continuously for over six years on monthly salaries, the court held that under Section 37 of the Employment Act their casual engagement automatically converted to regular term contracts by operation of law, citing Krystalline Salt Limited v Kwekwe Mwakele and Nanyuki Water & Sewerage Company v Benson Mwiti Ntiritu. It distinguished the Indian authority of Vice-chairman & Managing Director v R Varaprased relied on by the Respondents, holding that a contract whose terms contravene the law is illegal and void. The petition was allowed in part: the court declared the Petitioners regular employees with Employment Act rights and benefits, directed the Respondents to issue them contracts of employment on terms similar to comparable employees within 30 days, and awarded the Petitioners costs. The wider constitutional and monetary claims were not granted.

Key legal issues

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01

Nature of the Petitioners' employment

Holding

The Petitioners are regular employees whose casual contracts converted by operation of law under Section 37 of the Employment Act

Reasoning

Section 2 of the Employment Act defines a casual employee as one paid at the end of each day and not engaged for longer than twenty-four hours at a time. Section 37(1) deems the contract of a casual employee who works the equivalent of a month or performs work not completable within three months to be one where wages are paid monthly. Having worked continuously for over six years on monthly salary, the Petitioners' engagement automatically converted to regular term contracts, entitling them to statutory safeguards including protection from unfair termination, leave and overtime.

p. 6
02

Whether the parties' agreement to casual terms defeats the conversion

Holding

No - a contract whose terms contravene the law is illegal and void and cannot be enforced

Reasoning

The Respondents argued, relying on an Indian authority, that courts should not rewrite contracts between parties. The court accepted the principle but held it inapplicable where the contractual terms are themselves unlawful: a contract in contravention of the law is illegal, unenforceable and void, so the statutory conversion under Section 37 overrides the parties' agreement to casual terms.

p. 5

Legal principles established

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  • Casual employment automatically converts to a regular/term contract by operation of law under Section 37 of the Employment Act once the employee works the statutory period

Court orders

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  1. 1.A declaration that the Petitioners' employment is not casual but converted to regular employment by operation of the law with the rights and benefits under the Employment Act, 2007
  2. 2.The Respondents directed to issue to the Petitioners contracts of employment with terms and conditions similar to those issued to other employees in similar positions within the next 30 days
  3. 3.The Respondents to bear the Petitioners' costs of the Petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 3, 10, 20, 22(2)(c), 23, 258(2)(c), 27, 28, 30, 36, 38, 41, 47
  • Employment Act, 2007Sections 2, 9, 10, 35(1)(c), 37, 87
  • Evidence ActSection 107

Cases cited (6)

  • Nanyuki Water and Sewerage Company Limited vs Benson Mwiti Ntiritu & 4 others
    [2018] eKLR; Civil Appeal No 20 of 2017
  • Rashid Odhiambo Allogoh & 245 others vs Haco Industries Limited
    (2015) eKLR
  • Silas Mutwiri vs Haggai Multi-Cargo Handling Services Limited
    (2013) eKLR
  • Chemilil Sugar Company vs Ebrahim Ochieng Otuon & 2 others
    (2015) eKLR
  • Vice-chairman & Managing Director v R Varaprased & Others
    (2003) LLR 707 SC
  • Krystalline Salt Limited v Kwekwe Mwakele & 67 others
    [2017] eKLR
Jurisdiction invoked
Articles 22(2)(c), 41 and 258(2)(c) of the Constitution and Section 37 of 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, "Bett & 27 others v County Government of Uasin Gishu & 2 others (Petition 20 of 2020) [2023] KEELRC 1527 (KLR)", Case Analysis (2023). Petition (ELRC, Eldoret) - as stated in judgment, not numbered. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1527/eng@2023-06-15

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