Chebet v County Government of Bomet & 4 others (Petition E008 of 2022) [2024] KEELRC 116 (KLR)
The bottom line
#A Kenyan court confirmed that an employee kept on after a fixed-term contract expires becomes permanent and can only be lawfully terminated under the Employment Act.
What this practically means
#Executive summary
#Key legal issues
#Whether the petition was properly before the court or should be struck out for constitutional avoidance and non-exhaustion
The petition was properly before the court; the petitioner sought constitutional remedies unavailable under the alternative mechanisms, and the ELRC's exclusive jurisdiction is not ousted by exhaustion clauses
The court held the nature of a cause is deciphered from pleadings and reliefs sought; the petitioner sought constitutional remedies the PSC could not grant. Relying on the Supreme Court's decision in Abidha Nicholus, it reasoned that jurisdiction is not ousted by exhaustion clauses, especially where the alternative mechanism cannot grant injunctions, conservatory orders or remedies for rights violations.
The nature of the employment relationship between the petitioner and the 1st respondent
The petitioner is an employee on permanent and pensionable terms by virtue of continued, uninterrupted service for over seven years beyond the initial two-year contract
The petitioner was engaged on a two-year contract from 1st October 2015 and continued working uninterrupted for over seven years. The court found no evidence of revocation of the contract or action by the 3rd respondent on alleged irregular recruitment. Justice and fairness dictated that she could not be sent home for having 'overstayed' her contract; only lawful termination per Sections 35, 40, 41, 43, 44, 45 and 46 of the Employment Act would suffice.
Whether the notice dated 30th September, 2022 was valid and whether the reliefs sought should issue
The notice was null and void ab initio; certiorari quashed it, a permanent injunction issued, and violations of Articles 27, 41, 47 and 48 were declared
Having found the petitioner was permanent and pensionable, the court held the purported termination by simple notice was in abuse of due process and violated fair labour practices, fair administrative action, fair hearing and access to justice. Certiorari issued to quash the notice, and a permanent injunction restrained termination other than in accordance with the law or engagement of replacement labour. Damages were denied as the reinstatement-equivalent orders were adequate.
Legal principles established
#- An employee who continues working for an employer after expiry of an initial fixed-term contract, uninterrupted, acquires permanent and pensionable status
- The exclusive original and appellate jurisdiction of the ELRC is not ousted by exhaustion clauses where the alternative mechanism cannot grant the remedies sought
- A petition raising constitutional violations and seeking constitutional remedies should be considered on its substance rather than struck out for form
Court orders
#- 1.A declaration that the petitioner is an employee of the 1st respondent on permanent and pensionable terms
- 2.A declaration that the notice dated 30th September, 2022 is unlawful and antithesis to due process hence null and void
- 3.A permanent injunction restraining the 1st respondent, its agents, servants, and or others howsoever from acting on the said notice or any other notice unless and until such notice is in strict compliance with the law
- 4.A declaration that in issuing and serving the said notice the 1st respondent was in violation of the petitioner's rights under Articles 27, 41, 47, and 48 of the Constitution
- 5.An order of judicial review of certiorari quashing the decision by the 1st respondent to issue the said notice and the notice itself
- 6.The 1st respondent condemned to meet the costs of the petition
- 7.All the other prayers denied
- Jurisdiction invoked
- Article 162(2)(a) of the Constitution; Employment and Labour Relations Court Act, Section 12
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chebet v County Government of Bomet & 4 others (Petition E008 of 2022) [2024] KEELRC 116 (KLR)", Case Analysis (2024). Petition dated 19th October, 2022 (ELRC, Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/116/eng@2024-02-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.