Mbaja & 28 others v County Government of Migori & another (Cause E041 of 2023) [2025] KEELRC 1844 (KLR)
The bottom line
#The Employment Court dismissed 18 county workers' claims because they couldn't prove they were terminated, and their dispute had already been decided in another case.
What this practically means
#Executive summary
#Key legal issues
#Employment status of the claimant
The claimant was not a casual employee, and even if he was, his employment converted to term employment under Section 37 of the Employment Act
Section 2 of the Employment Act defines a casual employee as one paid at the end of each day and engaged for not longer than twenty-four hours. The claimant's engagements were fixed-term written contracts. Section 37 deems a casual who works the equivalent of one month, or whose work spans three months, to be employed on monthly wages. The court relied on Nanyuki Water & Sewerage Co. Ltd v Benson Mwiti Ntiritu.
Whether the claimant was unfairly or unlawfully terminated
The claimant failed to prove termination, let alone unfair or unlawful termination
Under Section 47(5) of the Employment Act the employee bears the burden of proving that unfair termination or wrongful dismissal occurred, while the employer justifies the grounds. The claimant did not identify the date of termination, who communicated it or how. No wrongdoing was attributed to any responsible officer of the respondents, who as corporate entities act through such officers.
Whether the suit is res judicata Kisumu ELRC JR No. E024 of 2023
The suit is res judicata
Section 7 of the Civil Procedure Act bars trying a matter directly and substantially in issue in a former suit between the same parties litigating under the same title, heard and finally decided by a competent court. The judicial review suit, filed three days after this one, concerned the same vexing question of casuals employed by Migori County Government and the 5th May 2023 advertisements, which were quashed with prohibition orders on 2nd May 2024.
Authority of the claimant to act for the other claimants
No letter of authority was on record; only Mr. Abich Omondi Michael's case was prosecuted and the others' cases abated
Although the claimants intended to confer authority on three of their number to swear affidavits and sign pleadings, the authority was never executed. Mr. Abich therefore acted in person and on his own behalf only.
Legal principles established
#- Casual employment converts to term employment under Section 37 of the Employment Act where the casual works for the equivalent of one month or the work spans three months or more
- In unfair termination claims the employee bears the burden of laying a prima facie basis that termination occurred and was unfair, whereupon the burden shifts to the employer
- The elements of res judicata must be satisfied in conjunctive terms: same issue, same parties, same title, heard and finally determined, by a competent court
Court orders
#- 1.The suit is dismissed with no orders as to costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act and Civil Procedure Act (specific enabling provision not stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbaja & 28 others v County Government of Migori & another (Cause E041 of 2023) [2025] KEELRC 1844 (KLR)", Case Analysis (2025). Cause No E041 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1844/eng@2025-06-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.