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ELRCDismissedPetition dated 17th November 2023 (number not stated in the judgment)

Nyaga & 46 others v Embu County Government & 2 others; Kenya County Government Workers Union (Interested Party) (Constitutional Petition E017 of 2023) [2025] KEELRC 788 (KLR)

Employment and Labour Relations Court
13 March 2025
3,139 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court dismissed 47 Embu enforcement officers' bid for permanent jobs, ruling their fixed-term contracts carried no rights after expiry.

What this practically means

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Executive summary

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Forty-seven former Enforcement Officers of the Embu County Government, employed on fixed term contracts from 2013 until their last contracts expired on 31st October 2023, petitioned the ELRC at Nyeri seeking orders restraining their removal from the payroll, an order compelling the County Public Service Board to clarify their terms, and a declaration converting their contracts to permanent and pensionable terms, alleging violations of Articles 2, 10, 19, 20, 22, 27, 47, 50, 73 and 174 of the Constitution and sections 41, 43 and 45 of the Employment Act. They claimed legitimate expectation of renewal and conversion, based on routine renewals and a 2016 supervisory recommendation. The respondents countered that the contracts lapsed by effluxion of time, that the vacancies were openly and competitively filled by 183 newly recruited officers effective 1st November 2023, and that the petitioners had participated in that recruitment. The respondents also argued the petition offended the exhaustion doctrine under section 77 of the County Government Act and Article 234 of the Constitution. The interested party supported the petition, contending the court had jurisdiction under Article 162(2), section 12 of the ELRC Act and Article 22. The court framed four issues and held: the exhaustion objection was overruled because the respondents had participated throughout and raised it only after the close of hearing; the petition was an afterthought, as the petitioners slept on their rights, joined the replacement recruitment, and sued only after missing out; and, citing authority that fixed term contracts carry no rights beyond expiry, the court found the reliefs untenable and the petition moot. The petition was dismissed with no order as to costs, each party bearing its own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the petition violates the doctrine of exhaustion of local remedies
  2. 2.Whether the petition is an afterthought and also overtaken by events
  3. 3.Whether the respondents violated petitioners' constitutional rights and fundamental freedoms
  4. 4.Whether the reliefs sought are merited

Key legal issues

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01

Whether the petition offended the doctrine of exhaustion of remedies under section 77 of the County Government Act and Article 234 of the Constitution

Holding

The court overruled the objection because the respondents had participated fully in the proceedings and only raised the issue after the close of hearing.

Reasoning

The court accepted that Article 234(2)(1) and section 77 of the County Government Act provide an alternative appeal mechanism to the PSC, and that the petitioners had not shown the PSC could not grant appropriate relief. However, the respondents had filed voluminous responses and participated until the hearing closed, raising exhaustion only in submissions. The court held it would be a mockery of the court process to allow that, and overruled the point.

p. 6
02

Whether the petition was an afterthought and overtaken by events

Holding

Yes - the petitioners let their fixed term contracts expire without challenge, participated in the recruitment that replaced them, and sued only three weeks after replacement.

Reasoning

The petitioners knew months in advance that their posts were being advertised; they neither protested nor appealed, but applied, were shortlisted and interviewed, and only sued after missing the appointment list. Relying on the Registered Trustees of the Presbyterian Church of East Africa decision, the court held no rights accrue after expiry of a fixed term contract, and the claim was a knee-jerk reaction.

p. 7
03

Whether the respondents violated the petitioners' constitutional rights, including legitimate expectation of conversion to permanent and pensionable terms

Holding

The court did not reach a substantive finding; having found the petition an afterthought and untenable, it declared the petition moot and dismissed it.

Reasoning

The court reasoned that a finding that the petition was an afterthought with untenable reliefs rendered the constitutional question academic. The contracts had lapsed, the vacancies were competitively filled, and no relief could issue, including conversion of a non-existent contract under section 37 of the Employment Act, which applies only to casual employment.

p. 7

Legal principles established

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  • Fixed term contracts carry no rights, obligations or expectations beyond their date of expiry.
  • Where the Constitution or a statute prescribes an alternative dispute-resolution procedure, that procedure should be strictly followed, but the exhaustion doctrine postpones rather than extinguishes the court's jurisdiction.
  • A party who submits to the court's jurisdiction until the close of hearing cannot then raise the exhaustion doctrine to strike out the proceedings.

Court orders

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  1. 1.The petition is dismissed
  2. 2.Each party bears own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Article 162(2) of the Constitution and section 12 of the ELRC Act; Article 22 of the Constitution (enforcement of Bill of Rights)

Relief refused

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Orders restraining the respondents from removing the petitioners from the payroll

The petition was found to be an afterthought and moot; the contracts had lapsed by effluxion of time and no rights accrue after expiry of a fixed term contract.

p. 7

An order compelling the 2nd respondent to issue clear terms of contract

Not tenable as the petition is moot and dismissed.

p. 7

A declaration that the petitioners' contracts be converted to permanent and pensionable terms

The court cannot convert a non-existent contract into permanent and pensionable employment; such jurisdiction under section 37 of the Employment Act extends only to casual employment, not fixed-term contracts.

p. 7

Costs borne by the respondents

Because the petitioners are now jobless, the court directed each party to bear its own costs.

p. 7

Costs

Each party to bear own costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In view of my finding above that the petition is an afterthought and the reliefs sought are untenable, I hold that the petition is now a moot case. It will not yield any relief and therefore I hereby dismiss it. Considering that the petitioners are now in the streets without jobs I direct that each party bears own costs.
p. 7Final orders - dismissal and costs
In the upshot, I hold that the petition is an afterthought and the reliefs sought are untenable.
p. 7Afterthought and untenable reliefs
The court cannot extend the contract term on behalf of the parties nor can it order conversion of a nonexistent contract into a permanent and pensionable employment under section 37 of the Employment Act.
p. 7Limits of section 37 Employment Act
the doctrine of exhaustion does not extinguish the jurisdiction of the court but rather postpones it to allow the alternative remedies to exhaust
p. 6Nature of the exhaustion doctrine
It is too late in the day to argue that point and therefore I over rule the same and proceed to determine the petition.
p. 6Waiver of exhaustion objection by participation

Issues in the judgment

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minor

The court refers to 'Registered Trustees of the Presbyterian Church of East Africa & 2 others, supra' as if earlier cited, but the case does not appear anywhere earlier in the judgment; its citation is not given.

minor

The judgment does not state the petition's case number or a neutral citation.

minor

The parties are not named individually anywhere in the judgment text; only 'the 1st Petitioner on behalf of the 47 petitioners' is mentioned, and the full names of the respondents and the interested party are not given.

minor

The court dismissed the petition as moot without making an express finding on the pleaded constitutional violations, leaving issue (c) unanswered in terms.

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, "Nyaga & 46 others v Embu County Government & 2 others; Kenya County Government Workers Union (Interested Party) (Constitutional Petition E017 of 2023) [2025] KEELRC 788 (KLR)", Case Analysis (2025). Petition dated 17th November 2023 (number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/788/eng@2025-03-13

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