Winny Cheptoo Ngeno & 482 Others v County Public Service Board, County Government of Trans Nzoia & Another

2. The Petition was subsequently amended on 21 st December 2024 to join the 160th to 483rd Petitioners, who similarly described themselves as employees of the 2nd Respondent. 3. The 1st Respondent is a body corporate capable of suing and being sued in its corporate name. 4. The 2nd Respondent is an entity corporate exercising constitutional authority. The Petition 5. The Petitioners filed the instant petition alleging violation of Articles 3, 10, 20, 27,28 and 41 of the Constitution seeking orders against the Respondents jointly and severally as follows: a. A declaration that the Respondents infringed upon the Petitioners' right to fair labour practices. b. A declaration that the Respondents threat to terminate the petitioners' employment on the basis or guise that the petitioners are casual, temporary or ghost workers is unlawful, null and void. 2 KTL ELRC PET NO. E006 OF 2024 JUDGMENT

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c. A declaration that after three months from the respective dates of employment of the Petitioners as casual employees the nature of the employment relationship between the petitioners and the 2nd Respondent did not remain casual or temporary but by operation of the law converted to permanent and pensionable and is protected under Section 37 of the Employment Act 2007, with all rights and benefits under the Act. d. An order that the petitioners be issued with employment contracts with terms and conditions applicable to other employees who are permanent and pensionable, on the petitioners' respective grades without discrimination on the basis of membership of a trade union. e. A declaration that the Respondents violated the petitioners' constitutional rights. f. An award of damages for violation of the Petitioners' fundamental rights and freedoms enshrined in the Bill of Rights under the Constitution of Kenya 2010. g. A declaration that the Petitioners are entitled to back underpaid salaries, accrued house allowance, accrued 3 KTL ELRC PET NO. E006 OF 2024 JUDGMENT

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commuter allowance, accrued annual leave pay, accrued maternity and paternity leave pay, and an order that the respondents do tabulate and pay the same based on the petitioners' respective dates of conversion to permanent and pensionable and years served there from and the job grades each Petitioner falls in. h. An order that the Respondents do pay the Petitioners costs of this Petition. 6. The Petition was supported by the affidavit of Winny Cheptoo Ngeno, Laeticia Namisi and Annet Nasimiyu Makokha, the 1 st, 90th and 137th Petitioners, respectively. 7. The Petitioners' case is that they were variously engaged by the Respondents from the year 2002 onwards and that some of the Petitioners have served for periods ranging from two years to twenty-two years. They aver that, on 23rd September 2024, the Respondents informed them that their services were no longer required and that the 2nd Respondent intended to terminate their employment on the basis that they were casual employees or ghost workers. 4 KTL ELRC PET NO. E006 OF 2024 JUDGMENT

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8. The Petitioners contend that, immediately following that communication, their respective supervisors informed them that they would no longer be assigned duties and that they should await payment of their outstanding dues before clearing with the Respondents. 9. They assert that they were not issued with any written notice of the 2nd Respondent's intention to terminate their employment. 10. It is the Petitioners’ contention that although they were engaged as casual workers on various dates from the year 2002, the 2nd Respondent paid their wages into their respective bank accounts at the end of every month. In addition, they assert that despite being designated as casual employees, they worked continuously and without interruption for periods ranging from two to twenty-two years, without annual leave or rest days. 11. The Petitioners aver that the Respondents declined to regularise their employment from casual to permanent and pensionable status or to issue them with written contracts as required under section 10 of the Employment Act, 2007. 5 KTL ELRC PET NO. E006 OF 2024 JUDGMENT

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12. They maintain that, during their service with the 2 nd Respondent, they endured degrading treatment and humiliation by being designated and referred to as casual workers for several years. 13. According to the Petitioners, they earn wages ranging from Kshs. 5,700 to Kshs. 18,000, which are occasionally reduced when they are transferred to rural stations outside Kitale Town. 14. They aver that, throughout their respective periods of service, the Respondents failed to consider their levels of education and professional training when determining their remuneration, on the ground that they were casual employees. They further contend that the Respondents failed to recognise their right to fair remuneration and to payment of the applicable statutory minimum wages. 15. It is the Petitioners assertion that notwithstanding their low wages, the Respondents make deductions in respect of the Affordable Housing Levy, NSSF, NHIF and PAYE, but have never issued them with itemised pay statements as required by law. 16. The Petitioners state that they perform essential duties alongside employees serving on permanent and pensionable 6 KTL ELRC PET NO. E006 OF 2024 JUDGMENT

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terms but since they are designated as casual employees, they are denied rest days, sick leave, annual leave, maternity leave, paternity leave and compassionate leave. 17. They aver that they made several pleas and requests to the Respondents to confirm them on permanent and pensionable terms, on the basis that they had served for more than three months and that their employment had consequently converted by operation of law but the Respondents remained adamant and now refer to them as ghost workers. 18. They further aver that most of them possess academic and professional qualifications similar to those held by employees serving on permanent and pensionable terms and despite this, the Respondents have declined to issue them with contracts of employment. 19. As a result, they contend that they continue to suffer discrimination within their respective departments and sections by being derogatorily referred to as casuals and being paid discriminatory wages. 20. The Petitioners aver that, due to a shortage of personnel, they work long hours and carry heavy workloads, but are not paid 7 KTL ELRC PET NO. E006 OF 2024 JUDGMENT

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the extraneous allowances payable to employees serving on permanent and pensionable terms. 21. They contend that their right to dignity was violated by their perennial designation as casual workers and by being treated as lesser employees. 22. They further contend that their right to property was violated because they were denied wages which they ought to have earned on terms equivalent to those enjoyed by employees serving on permanent and pensionable terms. 23. The Petitioners aver that they have, over the years, been subjected to unfair and discriminatory treatment through the denial of better terms and conditions of employment. 24. The Petitioners further contend that they were deprived of opportunities for economic development and social advancement which would have accrued to them had their employment been converted to permanent and pensionable status, thereby entitling them to improved terms and conditions of service and remuneration. 8 KTL ELRC PET NO. E006 OF 2024 JUDGMENT

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25. They aver that they are presently under an imminent threat of being laid off after being publicly characterised as ghost workers. The Respondents’ case 26. The Respondents opposed the Petition vide a Replying Affidavit sworn on 24th January 2025 by Truphosa Amere, the 2nd Respondent's County Secretary. She deposes that the 2 nd Respondent engages casual workers on a needs basis to perform non-core functions and that the 2 nd Respondent maintains a policy of engaging casual workers only for work which is not permanent in nature. 27. The Respondents averred that some of the Petitioners may, at one time or another, have been engaged by the 2 nd Respondent as casual workers but maintain, however, that such engagement was neither permanent nor continuous, but was informal, intermittent and undertaken on an on-and-off basis. 28. According to the Respondents, the wages payable to the casual workers accrued daily but were paid cumulatively at the end of 9 KTL ELRC PET NO. E006 OF 2024 JUDGMENT

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each month, based on the total number of days worked. They aver that those payments were not subject to statutory deductions. 29. The Respondents further state that, in March 2023, the 2 nd Respondent received a report from a task force which had audited the County Government's pending bills and humanresource establishment which report allegedly identified substantial irregularities in the recruitment of casual labourers and recommended the restructuring of remuneration systems to ensure accountability in the use of public resources. 30. The Respondents aver that, in compliance with the task force's recommendations, they commenced a staff-rationalisation exercise across all departments. 31. It is averred that in the course of that exercise, the Respondents invited all persons claiming to be employees of the County Government to submit their letters of employment, if any, for purposes of verification and possible confirmation to permanent and pensionable employment. 32. According to the Respondents, the Petitioners did not present any documentation proving their employment in the Health, 10 KTL ELRC PET NO. E006 OF 2024 JUDGMENT

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Finance and Municipality departments but that instead, some of the Petitioners issued a twenty-one-day strike notice against the 2nd Respondent on 12th August 2024. 33. The Respondents deny the allegation that the Petitioners received a notice on 23rd September 2024 terminating their employment or that their supervisors subsequently informed them that they would no longer be assigned duties. 34. They also deny that any communication was issued or circulated on 30th September 2024 directing casual workers paid through the master roll not to report for duty from 1 st October 2024. In this regard, they contend that the Petitioners' apprehension that casual labourers on short-term engagements would be terminated was unfounded. 35. The Respondents deny that they violated, infringed or threatened any of the Petitioners' individual fundamental rights and freedoms. They aver that no evidence has been tendered in support of the alleged constitutional violations and urge the Court to dismiss the Petition. 36. Additionally, the Respondents contend that the Petition does not meet the threshold of reasonable precision established in 11 KTL ELRC PET NO. E006 OF 2024 JUDGMENT

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Anarita Karimi Njeru v Republic (No. 1) [1979] KLR 154 and urged the court to strike it out in limine. They aver that only twenty-nine of the 159 Petitioners authorised the 1 st , 90th and 137th Petitioners to plead and swear affidavits on their behalf. 37. They contend that the Petition is founded upon a verifying affidavit and a supporting affidavit purportedly filed on behalf of all the Petitioners, yet only twenty-nine Petitioners granted the deponents authority to plead and swear affidavits on their behalf. 38. On that basis, the Respondents urge the Court to strike out from the Petition the remaining Petitioners who did not grant such authority. The Evidence 39. The 1st Petitioner testified as CW1 on her own behalf and on behalf of the other Petitioners. She adopted the Amended Petition, the supporting affidavit and the annexed documents as her evidence. 12 KTL ELRC PET NO. E006 OF 2024 JUDGMENT

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40. Her evidence was that the Respondents had discriminated against the Petitioners by denying them benefits enjoyed by other employees.CW1 testified that, whenever vacancies are advertised, persons with lower qualifications are recruited while the Petitioners are overlooked on the assumption that they are already in employment as a result of which they have stagnated in their employment. She further stated that they receive remuneration below the prescribed minimum wage and are not entitled to annual leave. She contended that formal employment would entitle them to remuneration and benefits comparable to those enjoyed by other employees. She further testified that the Petitioners cannot progress professionally because they cannot afford professional training, whereas employees on permanent terms are granted study leave. 41. According to CW1, the Petitioners were issued with one-year contracts in 2014 and continued working after those contracts expired. Their wages are paid through bank accounts and are subject to statutory deductions. 42. On cross-examination, CW1 stated that she knew all the other Petitioners, as they worked in different departments of the 13 KTL ELRC PET NO. E006 OF 2024 JUDGMENT

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County Government of Trans Nzoia. She testified that the Respondents referred to the Petitioners as casual workers despite their long and uninterrupted service. CW1 stated that she was initially employed in 2013 under a one-year contract but continued working for the Respondents after its expiry and was designated as a casual employee. She added that their payslips describe them as casuals and that their wages have remained unchanged. 43. CW1 testified that the Petitioners seek to continue serving the Respondents on permanent and pensionable terms so that they may retire with benefits, unlike some casual employees who allegedly retired without any benefits. She told the court that the Petitioners had applied for advertised positions and had been shortlisted but were not appointed. She further averred that the Respondents make statutory deductions from their wages while continuing to regard them as casual employees. 44. The Petitioners’ witness urged the court to grant them house allowance, annual leave pay, accrued maternity and paternity leave benefits, and the other benefits provided under the Employment Act and the applicable Salaries and Remuneration 14 KTL ELRC PET NO. E006 OF 2024 JUDGMENT

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Commission framework. She also stated that none of the Petitioners had been terminated from employment. 45. On re-examination, CW1 reiterated that she was engaged under a fixed-term contract in 2013 and that upon its expiry, the contract was not renewed, but she continued working and was thereafter treated as a casual employee. She stated that the Petitioners are paid monthly and that statutory deductions are made from their wages. According to CW1, the Petitioners filed the present Petition after learning that the Respondents were considering terminating casual employees. She contended that they were subsequently turned away from their workplaces but resumed work pursuant to an order of the Court. 46. The Respondents called Truphosa Amere, the County Secretary and Head of Public Service of the County Government of Trans Nzoia, who testified as RW1. She adopted her Replying Affidavit in response to the Petition as her evidence in chief and urged the Court to dismiss the Petition. 47. On cross-examination, RW1 stated that not all the Petitioners had been continuously engaged by the Respondents as alleged 15 KTL ELRC PET NO. E006 OF 2024 JUDGMENT

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in the Amended Petition. She insisted that the Petitioners were engaged on a needs basis. 48. RW1 maintained that the Petitioners had been engaged intermittently, informally and on an on-and-off basis. However, when referred to the bank statements at pages 540 to 546 of the Petitioners' bundle, she acknowledged that the employees concerned had been paid continuously by the Respondents and that such engagement could not properly be described as informal and intermittent. She stated that this applied to most of the Petitioners. 49. RW1 further stated that the Respondents had identified inconsistencies in the status of persons described as casual employees and that some members of staff had improperly been designated as casuals despite performing work that was not casual in nature. She stated that the situation had been rectified by assigning personal numbers to all members of staff, including casual workers. She further stated that, provided the Petitioners' claims accorded with the applicable law and the Salaries and Remuneration Commission framework, the Respondents were not opposed to the reliefs sought, including 16 KTL ELRC PET NO. E006 OF 2024 JUDGMENT

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in respect of persons who had not come before the Court. She confirmed that all the Petitioners receive their wages through their bank accounts. 50. On re-examination, RW1 stated that the Respondents had undertaken a rationalisation and suitability exercise intended to identify the skills possessed by each casual worker and match those skills to available work and institutional needs. She confirmed that all the Petitioners were on the payroll, having been onboarded more than a year earlier, and that none of them had been terminated from employment. 51. Pursuant to the Court's directions issued on 24 th February 2026, the parties were required to file written submissions. The Petitioners' submissions are dated 21 st April 2026 whereas the Respondents submissions are dated 18 th September 2026. Determination 52. Having considered the Petition and the submissions on record, the issues that fall for determination by this court are: i. Whether the Petition is competent 17 KTL ELRC PET NO. E006 OF 2024 JUDGMENT

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ii. What was the nature of the employment relationship between the Petitioners and the Respondents? iii. Whether the Petitioners’ rights were violated? iv. Whether the Petitioners are entitled to the remedies sought Whether the Petition is competent 53. The Respondents challenged the competency of the Petition on the ground that the Petition did not meet the threshold of constitutional precision established in Anarita Karimi Njeru v Republic (No. 1) [1979] KLR 154 and also, that only twentynine of the 159 Petitioners authorised the 1 st, 90th and 137th Petitioners to plead and swear affidavits on their behalf. On that basis, the Respondents urged the Court to strike out the remaining Petitioners from the proceedings. 54. A party alleging violation of constitutional rights is required to identify, with reasonable precision, the constitutional provisions allegedly violated and the manner in which they were violated. 18 KTL ELRC PET NO. E006 OF 2024 JUDGMENT

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55. In the present Petition, the Petitioners identified Articles 27, 28, 40 and 41 of the Constitution and set out the acts and omissions complained of. These included their prolonged designation as casual employees despite continuous service; payment of wages monthly; failure to issue them with written contracts; denial of employment benefits; alleged discriminatory remuneration; and the threatened termination of their employment on the ground that they were casual or ghost workers. 56. In my considered view, those averments sufficiently disclosed the constitutional Respondents were and statutory required to complaints which the answer. Indeed, the Respondents filed a substantive response and called evidence addressing the Petitioners’ employment status, the alleged violations and the remedies sought. 57. The Petition cannot, therefore, be said to have taken the Respondents by surprise or to have deprived them of a reasonable opportunity to answer the Petitioners’ case. The objection founded on want of constitutional precision is consequently without merit. 19 KTL ELRC PET NO. E006 OF 2024 JUDGMENT

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58. Regarding the authority granted to the 1 st, 90th and 137th Petitioners, all the 483 Petitioners are expressly named as parties to the Petition. The supporting affidavits sworn by the three Petitioners relate to common employment practices allegedly affecting the Petitioners within their respective departments. 59. Further, the Petitioners produced their appointment letters and bank statements in support of their respective claims. RW1 also acknowledged the existence of the employment relationship and confirmed that all the Petitioners were on the Respondents’ payroll and received their wages through their respective bank accounts. 60. The fact that some of the Petitioners did not swear separate affidavits does not extinguish their claims or render the entire Petition incompetent. 61. I therefore decline the Respondents’ invitation to strike out the other Petitioners from the proceedings. What was the nature of the employment relationship between the Petitioners and the Respondents? 20 KTL ELRC PET NO. E006 OF 2024 JUDGMENT

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62. From the pleadings and evidence on record it is not in dispute that as of now, the Petitioners are working for the Respondents and are designated as casual employees. 63. The Employment Act defines a casual employee under Section 2 as an individual whose engagement provides for his payment at the end of each day and who is not engaged for a longer period than twenty-four hours at a time. 64. Section 37 of the Employment Act further provides for conversion of casual employment to regular contracts as follows: (1) Notwithstanding any provisions of this Act, where a casual employee (a)works for a period or a number of continuous working days which amount in the aggregate to the equivalent of not less than one month; or (b)performs work which cannot reasonably be expected to be completed within a period, or a number of working days amounting in the aggregate to the equivalent of three months or more, 21 KTL ELRC PET NO. E006 OF 2024 JUDGMENT

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the contract of service of the casual employee shall be deemed to be one where wages are paid monthly and section 35(1)(c) shall apply to that contract of service. (2) In calculating wages and the continuous working days under subsection (1), a casual employee shall be deemed to be entitled to one paid rest day after a continuous six days working period and such rest day or any public holiday which falls during the period under consideration shall be counted as part of continuous working days. (3) An employee whose contract of service has been converted in accordance with subsection (1), and who works continuously for two months or more from the date of employment as a casual employee shall be entitled to such terms and conditions of service as he would have been entitled to under this Act had he not initially been employed as a casual employee. (4) Notwithstanding any provisions of this Act, in any dispute before the Industrial Court on the terms and conditions of service of a casual employee, the Industrial Court shall have the power to vary the terms of service of the casual 22 KTL ELRC PET NO. E006 OF 2024 JUDGMENT

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employee and may in so doing declare the employee to be employed on terms and conditions of service consistent with this Act. (5)A casual employee who is aggrieved by the treatment of his employer under the terms and conditions of his employment may file a complaint with the labour officer and section 87 of this Act shall apply. 65. The import of Section 37 of the Employment Act is that the court is empowered to convert the contract of service of an employee engaged on casual basis to regular term contract in the circumstances set out in the Act. 66. This Court considered a substantially similar issue in Bett & 27 others v County Government of Uasin Gishu & 2 others [2023] KEELRC 1527 (KLR). In that case, the Petitioners had served the Respondents in various capacities for more than six years and were paid monthly but continued to be designated as casual employees. The Court held that: “The Petitioners having worked for the Respondents for a period of over 6 years, are no longer casual employees. 23 KTL ELRC PET NO. E006 OF 2024 JUDGMENT

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Their engagement automatically converted from casual engagement to term contracts by operation of the law.” 67. The Court consequently found that, by dint of section 37 of the Employment Act, the petitioners were regular employees entitled to the statutory safeguards available to employees serving under regular contracts of employment, including protection from unfair termination and employment benefits such as annual leave and overtime. 68. Similarly, in Nanyuki Water & Sewage Company Limited v Benson Mwiti Ntiritu & 4 others [2018] eKLR, the Court of Appeal held that: “Section 37 of the Employment Act, 2007 applies to the employment of the respondents to the effect that their casual employment was converted into a contract of service where wages are paid monthly and to which section 35(1)(c) of the Act applies. The respondents were entitled to such terms and conditions of service as they would have been entitled to under this Act had they not initially been employed as casual employees.” 24 KTL ELRC PET NO. E006 OF 2024 JUDGMENT

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69. The Petitioners herein pleaded that they had served the Respondents continuously for periods ranging from two to twenty-two years. They further stated that they were paid monthly through their respective bank accounts and that statutory deductions were made from their wages. 70. In support of their case, the Petitioners produced their respective appointment letters together with bank statements showing payment appointment of letters wages by the Respondents. identify the Petitioners’ The respective engagements, while the bank statements demonstrate that they were paid monthly and, in several instances, continuously over a substantial period. 71. The appointment letters and bank statements constitute objective evidence of the employment relationship between the Petitioners and the Respondents. They are inconsistent with the Respondents’ contention that the Petitioners failed to demonstrate that they worked for the 2 nd Respondent or that their engagements were merely informal, intermittent and undertaken on an on-and-off basis. 25 KTL ELRC PET NO. E006 OF 2024 JUDGMENT

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72. The documentary evidence was further corroborated by RW1. When referred to the bank statements in the Petitioners’ bundle, RW1 acknowledged that the Petitioners were paid continuously by the Respondents. She conceded that such employment could not properly be described as informal and intermittent and that this position applied to most of the Petitioners. 73. RW1 also acknowledged that the document relating to Wanjala Jacqueline Nasimiyu, dated 28th November 2023, described the nature of her employment as temporary or casual but recorded her period of service as running from the year 2007 to date. She further conceded that revenue collection is work of a continuous and permanent nature. 74. RW1 confirmed that all the Petitioners received their wages through their bank Respondents’ payroll accounts, were presently on and been allocated personal had the numbers. She further stated that the Respondents had identified members of staff who had improperly been designated as casual workers despite performing duties which were not casual in nature. 26 KTL ELRC PET NO. E006 OF 2024 JUDGMENT

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75. Although RW1 maintained that the Petitioners were engaged on a needs basis, the Respondents did not produce master rolls, attendance records, payment schedules or other employment records demonstrating that any of the Petitioners worked intermittently or was engaged for periods not exceeding twenty-four hours at a time. 76. Under sections 10(7) and 74 of the Employment Act, the employer bears the statutory obligation of maintaining and producing prescribed employment records. The Respondents cannot rely on the absence of records which they were legally required to maintain to defeat the Petitioners’ claims. 77. The Petitioners’ prolonged service, payment of wages monthly, placement on the payroll, allocation of personal numbers and the continuous nature of their duties are incompatible with casual employment. 78. The circumstances of the present Petition are materially similar to those considered by this Court in Bett & 27 others (supra). The Respondents have not demonstrated any material distinction that would justify a departure from the reasoning and conclusion reached in that decision. 27 KTL ELRC PET NO. E006 OF 2024 JUDGMENT

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79. Applying section 37 of the Employment Act and the reasoning in Bett to the evidence before the Court, the employment of the Petitioners cannot lawfully be casual. Their engagements converted, by operation of law, into regular contracts of service upon the satisfaction of the statutory period prescribed under section 37. 80. Consequently, I find and hold that the Petitioners are regular employees entitled to the statutory safeguards and minimum terms and conditions of employment provided under the Employment Act, including annual leave, rest days, applicable statutory leave and protection from unfair termination. Whether the Petitioners’ rights were violated? 81. Article 41(1) of the Constitution guarantees every person the right to fair labour practices. As already found, the Petitioners were continuously designated as casual workers for periods extending to several years, despite their continuous service, monthly remuneration and performance of work of a continuous nature. This was inconsistent with section 37 of the 28 KTL ELRC PET NO. E006 OF 2024 JUDGMENT

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Employment Act and the constitutional guarantee of fair labour practices. 82. Further, sections 9 and 10 of the Employment Act require an employer to issue an employee with a written contract containing the prescribed employment particulars where the employment is for an aggregate period equivalent to three months or more. 83. The failure by the Respondents to issue the Petitioners with proper written contracts setting out their respective terms and conditions of service, coupled with the prolonged and continuous nature of their employment, violated their statutory rights and their right to fair labour practices under Article 41 of the Constitution. 84. The Petitioners also alleged violation of their rights to equality and freedom from discrimination, dignity and property under Articles 27, 28 and 40 of the Constitution. 85. On discrimination, the Petitioners contended that they performed similar duties as employees serving on permanent and pensionable terms but received lower remuneration and were denied the benefits enjoyed by those employees. The 29 KTL ELRC PET NO. E006 OF 2024 JUDGMENT

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Respondents did not deny that the Petitioners performed similar duties as those on permanent and pensionable terms but were paid differently to their advantage. The admission by RW1 that the Petitioners were engaged and retained as casuals over the years corroborated the averments of the Petitioners. I accordingly find that the Petitioners did prove that they were discriminated by the Respondents. 86. Similarly, the Petitioners did demonstrate that their designation as casual employees constituted a violation of their rights to dignity and property under Articles 28 and 40 of the Constitution. 87. Accordingly, the Court finds that the Respondents violated the Petitioners’ right to fair labour practices under Article 41, their rights to equality under the law, dignity and property under Articles 27, 28 and 40 of the Constitution. Whether the Petitioners are entitled to the remedies sought? 88. In the amended petition, the Petitioners sought for various orders which I address as hereunder. 30 KTL ELRC PET NO. E006 OF 2024 JUDGMENT

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i. A declaration that the Respondents infringed upon the Petitioners' right to fair labour practices. As already found, the Petitioners served the Respondents continuously for periods ranging from two to twenty-two years, were paid monthly through their bank accounts and performed duties of a continuous nature but were treated as casual employees. This treatment was inconsistent with section 37 of the Employment Act and amounted to an infringement of the Petitioners’ right to fair labour practices under Article 41 of the Constitution. The declaration sought under this head is therefore merited. ii. A declaration that the respondents’ threat to terminate the petitioners' employment on the basis or guise that the petitioners are casual, temporary or ghost workers is unlawful, null and void. The Petitioner’s witness, CW1 in cross examination acknowledged that none of the Petitioners had been terminated from employment. RW1 similarly confirmed 31 KTL ELRC PET NO. E006 OF 2024 JUDGMENT

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that all the Petitioners remained on the Respondents’ payroll and that none of them had been terminated. Although the Petitioners testified that they had been turned away from their workplaces before being reinstated pursuant to an order of the Court, the evidence before the Court does not establish that the Respondents ultimately terminated their employment. Since no termination has occurred, there is no completed decision capable of being declared null and void. iii. A declaration that after three months from the respective dates of employment of the petitioners as casual employees the nature of the employment relationship between the petitioners and the 2nd respondent did not remain casual or temporary but by operation of the law converted to permanent and pensionable and is protected under Section 37 of the Employment Act 2007, with all rights and benefits under the Act. 32 KTL ELRC PET NO. E006 OF 2024 JUDGMENT

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For the reasons already stated, the Petitioners’ employment ceased to be casual and converted into regular contracts of service by operation of section 37 of the Employment Act. The Petitioners consequently became entitled to the statutory protections and minimum terms and conditions of employment provided under the Act. However, section 37 does not expressly provide for automatic appointment to permanent and pensionable positions. It converts casual employment into a contract of service under which wages are paid monthly and to which section 35(1)(c) of the Act applies. Appointment to permanent and pensionable positions within a county public service must comply with the Constitution, the County Governments Act, the applicable public-service regulations, the authorised staff establishment and the mandate of the relevant County Public Service Board. Accordingly, this prayer succeeds to the extent that the Petitioners’ employment converted into regular 33 KTL ELRC PET NO. E006 OF 2024 JUDGMENT

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contracts of service governed by the Employment Act. The prayer for a declaration that the Petitioners automatically became permanent and pensionable employees is declined. iv. An order that employment the petitioners contracts with be terms issued and with conditions applicable to other employees who are permanent and pensionable, the on petitioners' respective grades without discrimination on the basis of membership of a trade union. Sections 9 and 10 of the Employment Act require an employer to issue a written contract setting out the prescribed particulars where the employment is for an aggregate period equivalent to three months or more. Having found that the Petitioners’ employment converted into regular terms of service, the Petitioners are entitled to written contracts setting out their 34 KTL ELRC PET NO. E006 OF 2024 JUDGMENT

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respective positions, remuneration and other terms and conditions of employment. The prayer is allowed to the extent that the Respondents shall issue each Petitioner with a written contract compliant with sections 9, 10 and 37 of the Employment Act and the applicable public-service framework. v. A declaration that the Respondents violated the Petitioners' constitutional rights. The Court has found that the Respondents violated the Petitioners’ right to fair labour practices under Articles 27, 28, 40 and 41 of the Constitution by continuing to designate and treat them as casual employees after their employment had converted to regular terms by operation of law. The declaration sought is therefore granted. 35 KTL ELRC PET NO. E006 OF 2024 JUDGMENT

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vi. An award of damages for violation of the Petitioners' fundamental rights and freedoms enshrined in the Bill of Rights under the Constitution of Kenya 2010. An award of constitutional damages is discretionary and does not follow automatically upon a finding that a constitutional right has been violated. The Court must consider the nature of the violation and whether the other reliefs granted sufficiently vindicate the right in question. The court must further consider the practicality of granting such orders. In the present case, the declarations recognising the Petitioners’ proper employment status, together with the order directing the Respondents to issue written contracts and accord them their statutory employment rights, provide sufficient redress. In the circumstances, an additional award of constitutional damages is not warranted. This prayer is declined. 36 KTL ELRC PET NO. E006 OF 2024 JUDGMENT

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vii. A declaration that the Petitioners are entitled to back underpaid salaries, accrued house allowance, accrued commuter allowance, accrued annual leave pay, accrued maternity and paternity leave pay, and an order that the respondents do tabulate and pay the same based on the petitioners' respective dates of conversion to permanent and pensionable and years served there from and the job grades each petitioner falls in. Although the Petitioners produced appointment letters and bank statements showing their respective engagements and the salaries paid to them, the claims under this head are in the nature of special damages and ought to have been specifically pleaded and strictly proved. The Petitioners did not particularise the amount claimed by each of the 483 Petitioners. They did not identify the applicable salary scales, statutory wage orders, job grades or comparable employees against which the alleged underpayments and allowances could 37 KTL ELRC PET NO. E006 OF 2024 JUDGMENT

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be assessed. Neither did they specify the periods during which each Petitioner was allegedly denied annual, maternity or paternity leave. In the absence of sufficient particulars, supporting computations and evidence establishing the legal and factual basis of each individual claim, the prayer for salary underpayments, house allowance, commuter allowance, annual leave pay, maternity leave pay and paternity leave pay is not proved and is accordingly declined. 89. The upshot, the Court makes the following orders: i. A declaration is hereby issued that the Petitioners’ employment ceased to be casual and converted, by operation of section 37 of the Employment Act, into regular contracts of service under which wages are payable monthly as provided under section 35(1)(c) of the Act. ii. A declaration is hereby issued that the Petitioners are entitled to the rights, safeguards and minimum terms and conditions of employment prescribed under the 38 KTL ELRC PET NO. E006 OF 2024 JUDGMENT

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Employment Act, and the relevant terms of employment for regular employees of the Respondents, including protection from unfair termination. iii. A declaration is hereby issued that the Respondents violated the Petitioners’ right to fair labour practices under Articles 27, 28, 40 and 41 of the Constitution by continuing to designate and treat them as casual employees after their contracts had converted by operation of law. iv. The Respondents are directed to issue to each Petitioner a written contract setting out their respective terms and conditions of employment in compliance with sections 9, 10 and 37 of the Employment Act and relevant terms of service applicable to their regular employees within sixty days from the date of this Judgment. v. The Respondents shall bear the Petitioners’ costs of the Petition. DATED, SIGNED AND DELIVERED VIRTUALLY ON THIS 24TH DAY OF SEPTEMBER, 2026 39 KTL ELRC PET NO. E006 OF 2024 JUDGMENT

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MAUREEN ONYANGO JUDGE 40 KTL ELRC PET NO. E006 OF 2024 JUDGMENT

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