Aeja & 13 others v Migori County Government & another (Cause 36 of 2020) [2023] KEELRC 3197 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the claimants were casual employees
They were not; they were on fixed-term contracts, paid monthly, with continuous service exceeding 3 months
The claimants were engaged on 3-month fixed-term service contracts with the County Public Service Board from 2014 and continued serving after expiry without written renewal. The statutory definition of a casual employee is one engaged for no more than 24 hours at a time and paid at the end of the day. Monthly pay and continuous service over 3 months exclude casual status, so the pleaded unfair labour practice founded on casualisation failed.
Whether keeping employees on successive fixed-term contracts amounts to unfair labour practices entitling them to permanent employment
No; fixed-term contracts are lawful and the court cannot compel engagement on permanent terms
Sections 10(2)(e) and 37 of the Employment Act, 2007 recognise fixed-term contracts. The court found the respondents not culpable. Permanent employment merely denotes employment up to an agreed retirement age, distinguished by pension rather than gratuity and no need for periodic renewal. Conversion to permanent terms could not be ordered on these facts.
Whether the respondents breached the statutory duty to provide written contracts
Yes, service without written contracts since 5 February 2022 contravenes sections 9 and 10 of the Employment Act
The County Labour Officer's inquiries established that after the last contracts expired on 5 February 2022 the claimants continued serving without written contracts. The court held this contrary to the letter and spirit of sections 9 and 10 of the Employment Act, 2007 and directed the respondents to issue written contracts to avoid further needless litigation.
Whether the claimants proved discrimination
They did not; the court so found without extended analysis
The claim, as pleaded, included violation of fair labour practices; the court briefly concluded that discrimination was not proved. No detailed reasons were given, the finding appearing to flow from the absence of evidence by the claimants establishing differential treatment.
Entitlement of the 14th claimant to salary arrears
The respondents ought to pay his wages as they fall due under section 18 of the Employment Act, 2007
The Labour Officer's report showed the 14th claimant was owed salary arrears over 43 months. As organs of public service, the County Public Service Board and the County Government were directed to pay his wages as they fall due as contemplated by section 18 of the Employment Act, 2007.
Legal principles established
#- A casual employee is one engaged for no more than 24 hours at a time and paid at the end of the day; continuous service beyond 3 months on monthly pay takes an employee outside casual employment
- Fixed-term contracts are recognised by law and retaining employees on fixed-term contracts does not, without more, constitute an unfair labour practice
- Permanent employment is a general term denoting employment up to an agreed retirement age, distinguished by accrual of pension rather than gratuity and absence of need for periodic renewal
Court orders
#- 1.The cause is dismissed
- 2.No order on costs since the parties are still in an on-going employment relationship
- 3.The respondents (County Public Service Board, Migori and the County Government) ought to pay the 14th claimant his wages/salary arrears as they fall due under section 18 of the Employment Act, 2007
- 4.The respondents should issue the claimants written contracts to avoid further needless litigation
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Article 162(2) jurisdiction implied; judgment does not state the provision)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Aeja & 13 others v Migori County Government & another (Cause 36 of 2020) [2023] KEELRC 3197 (KLR)", Case Analysis (2023). Cause (number not stated on the face of the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3197/eng@2023-12-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.