The Court of Appeal has ordered Embu County Government and the Embu County Public Service Board to place long-serving workers on permanent and pensionable terms.
In a landmark ruling delivered on July 24, the court emphasized that years of continuous employment under casual and short-term contracts violated their constitutional right to fair labor practices.
The judgment, ordering the workers to be retained on permanent and pensionable terms, overturned a previous Employment and Labor Relations Court (ELRC) decision that had dismissed the workers’ claims on June 24, 2020.
“We direct and order the respondent to regularize the appellant’s members’ employment terms and conditions of service to accord with the fair labor practices in accordance with the Constitution and Employment Act forthwith,” part of the ruling directed the Embu County Public Service Board, which was a respondent in the case.
Appeal Court judges present in the ruling included S. Ole Kantai, J. Lesit and Ali-Aroni.
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Appeal Court on Short-Term Job Contracts
According to the Appeal Court, the case was filed by the Kenya County Government Workers Union on behalf of more than 250 employees working in health facilities across Embu County.
The union argued that many of its members had been employed under contracts lasting three months, six months or one year, yet continued working uninterrupted for several years, with some serving for more than 20 years.
Further, the union explained that the county government inherited the workers following the devolution of health services from the national government in 2011.
The affected employees claimed they were left in uncertainty whenever their contracts expired because there was little clarity about renewals, employment status, or future job security.
In addition to the uncertainty, the employees noted that they were denied benefits such as paid leave and pension rights.
Despite the claims from the workers, the county government maintained that the employees were engaged on lawful fixed-term contracts rather than casual arrangements.
It argued that the contracts were periodically renewed and that converting them into permanent employment would amount to rewriting agreements that both parties had voluntarily entered.
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Court Argument on Permanent Employment Rights
After reviewing the evidence, the Court of Appeal held that the true nature of the employment relationship was more important than the labels attached to the contracts.
In accordance with Section 37 of the Employment Act, the Court of Appeal found that some workers had been incorrectly classified as casual employees despite performing regular duties for extended periods.
Citing previous decisions made during the Kenyatta University v Maina case, the court stated that repeatedly renewing short-term contracts over many years could be a deliberate attempt to avoid granting employees the protections and benefits afforded to permanent staff.
The appellate court held that the county government’s actions violated Article 41 of the Constitution.
Embu County Government and the Public Service Board were ordered to immediately regularize the workers’ terms and conditions of service in accordance with the Constitution and the Employment Act.
Costs of both the petition and the appeal were awarded to the union according to the court ruling on July 24.
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