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ELRCPartially AllowedNot stated in judgment (Employment and Labour Relations Court cause, Nakuru)· [2024] KEELRC 430 (KLR)

Kenya County Government Workers Union v County Government of Bomet & another (Employment and Labour Relations Cause E016 of 2022) [2024] KEELRC 430 (KLR)

Employment and Labour Relations Court of Kenya
29 February 2024
7,425 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~30 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that county workers who keep working after their contracts expire become permanent employees, and disguised termination letters are void.

What this practically means

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Executive summary

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The claimant, a trade union acting for over 595 grievants (former employees of a county government), challenged notices dated 30th September 2022 purporting to convert their employment from permanent and pensionable terms to three-month fixed-term contracts, effectively terminating them from 1st January 2023. The grievants had been appointed on two-year contracts effective 1st October 2015 and continued working for over seven years after expiry. Neither respondent filed a response or defence to the cause; the 1st respondent entered appearance but could address the court only on law, and the 2nd respondent, having entered no appearance, had no audience - its submissions and improperly filed supplementary submissions by another law firm were expunged, though considered without prejudice. On jurisdiction, the court held the ELRC's exclusive original jurisdiction under Article 162(2)(a) and Section 12 of the ELRC Act is not ousted by exhaustion clauses, applying Abidha Nicholus v Attorney General, since the PSC could not grant the constitutional and quashing remedies sought. On the merits, the court held that the grievants gained permanent and pensionable status upon the respondents allowing them to continue working after the initial contracts expired in 2017. The three-month notices were held to be disguised terminations, unilaterally imposed without consultation, amounting to unfair labour practice and violation of Articles 41, 47 and 50. The court declared the notices null and void, quashed them, prohibited replacement recruitment and variation of terms, and ordered payment of all pending salaries and benefits within 30 days, with costs against both respondents jointly and severally.

Key legal issues

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01

Whether the cause was properly before the court notwithstanding the alleged requirement to exhaust remedies before the Public Service Commission

Holding

The cause was properly before the court; ELRC's jurisdiction is not ousted by exhaustion clauses, especially where the remedies sought (declarations, quashing orders, injunctions) are not available from the alternative mechanism

Reasoning

Relying on Abidha Nicholus v Attorney General, the court held that where an out-of-court mechanism cannot grant the remedies sought, a party may approach the court directly. The PSC could not grant the constitutional declarations and quashing orders sought. Section 12 of the ELRC Act confers exclusive original jurisdiction which exhaustion clauses cannot displace unless a law clearly excludes courts and provides clear remedies in the alternative mechanism.

p. 10
02

Nature of the employment relationship between the grievants and the 1st respondent

Holding

The grievants became permanent and pensionable employees upon continued work after expiry of their initial two-year contracts in 2017

Reasoning

The grievants were appointed on two-year contracts effective 1st October 2015, which expired in 2017. They nevertheless continued working with full salary and benefits with the respondents' knowledge and consent, for over seven years. The court held this continued engagement converted them to permanent and pensionable status. The respondents' allegations of irregular recruitment were dismissed as an afterthought since no action was taken for seven years.

p. 11
03

Whether the notices dated 30th September 2022 purporting to extend contracts were lawful

Holding

The notices were disguised terminations, unjust, irregular, unfair, unlawful, null and void, and were quashed

Reasoning

The notices purported to offer three-month contract extensions yet the contracts they were to extend had long expired. The grievants were not consulted and the terms were unilaterally altered, amounting to unfair labour practice and denial of fair hearing. The respondents disowned the officer who signed the notices, confirming their irregularity. The notices in effect terminated the grievants without due process.

p. 12
04

Consequences of failure to file a response or defence to the claim

Holding

The cause is undefended; the pleaded facts stand uncontroverted and respondents with no response may address the court only on issues of law

Reasoning

Rule 13 of the ELRC (Procedure) Rules 2016 requires a respondent to file a response. The 1st respondent entered appearance but filed no response; replying affidavits to an application do not amount to a defence. The 2nd respondent neither entered appearance nor filed a defence and thus had no right of audience; its submissions were expunged, though considered on a without-prejudice basis.

p. 9

Legal principles established

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  • Upon expiry of an initial fixed-term contract, where the employer allows the employee to continue working and earning salary without renewal, the employee gains the status of permanent and pensionable employment
  • The exclusive original and appellate jurisdiction of the ELRC is not ousted by exhaustion clauses in the absence of clear statutory exclusion
  • Where a respondent in a cause enters appearance but files no response, the facts pleaded by the claimant are uncontroverted and the respondent may address the court only on issues of law

Court orders

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  1. 1.A declaratory order that the fundamental rights and freedoms of the grievants under Articles 41, 47 and 50 of the Constitution were violated by the unilateral decision and action of the respondents in issuance of the notices/letters of 30th September, 2022
  2. 2.A declaration that the notices/letters of extension of contracts, which were letters/notices of termination in disguise, were unjust, irregular, unfair, unlawful, null and void
  3. 3.The impugned notices/letters be quashed and nullified
  4. 4.The respondents shall not vary, alter, change, or interfere with the terms and conditions of employment for the grievants other than as provided in the law
  5. 5.The respondents are prohibited from interviewing, recruiting and or employing any persons to replace the grievants in their positions or to perform the same or similar work
  6. 6.The respondents are ordered to, within 30 days of judgment, pay all pending salaries, benefits and emoluments due and payable to the grievants
  7. 7.The respondents shall jointly and severally meet the costs of the cause
Jurisdiction invoked
Article 162(2)(a) of the Constitution and Section 12 of the Employment and Labour Relations Court Act

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, "Kenya County Government Workers Union v County Government of Bomet & another (Employment and Labour Relations Cause E016 of 2022) [2024] KEELRC 430 (KLR)", Case Analysis (2024). Not stated in judgment (Employment and Labour Relations Court cause, Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/430/eng@2024-02-29

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