Marwa & 32 others v County Government of Migori (Civil Appeal 131 of 2019) [2024] KECA 1583 (KLR)
The bottom line
#The Court of Appeal ruled that former municipal council staff must cooperate with county transition processes, including suitability tests and signing new contracts, to secure county government jobs.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appellants were employees of the County Government of Migori, having been automatically transferred from Kehancha Municipal Council
- 2.Whether the appellants' employment was converted to permanent and pensionable terms by dint of continuous service, under Sections 35 and 37 of the Employment Act
- 3.Whether the termination of the appellants' employment was unlawful and unfair for want of notice and a fair process
- 4.Whether the appellants were entitled to the reliefs sought: reinstatement, confirmation as permanent employees, underpayment wages, leave, and Sunday/public holiday pay
Key legal issues
#Whether the appellants were automatically absorbed into the respondent's employment on transition from Kehancha Municipal Council
No automatic transition occurred; the appellants were not appointed by the Public Service Commission and failed to cooperate with the transition process
Under Sections 137 and 138 of the County Governments Act, automatic transition or secondment applies only to employees appointed by or under the delegated authority of the Public Service Commission. The appellants did not demonstrate such appointment. Absent automatic transition, the respondent was required to conduct a suitability test under the transition guidelines; this was frustrated by the appellants' failure to produce original employment records and their refusal to sign new contracts.
Whether continued service converted the appellants' temporary contracts into permanent and pensionable terms under Sections 35 and 37 of the Employment Act
No; the appellants were not casual employees but held three-month renewable contracts paid monthly, which fell under Section 35(1)(c)
Section 37 deals with conversion of casual employment to term contracts. Casual employees are paid at the end of each day and engaged for periods not exceeding 24 hours. The appellants were paid monthly on three-month renewable contracts, so Section 35(1)(c) already governed their contracts and they were entitled to twenty-eight days' notice. Section 37 conversion to permanent and pensionable terms did not arise.
Whether the termination was unlawful for want of notice under Section 35 of the Employment Act
The termination letters were not notices but the issue of notice did not arise because the appellants, by their own conduct, had terminated the employment relationship
Although the letters of 31st March 2015 terminated rather than gave notice, the respondent gave reasons: refusal to attend suitability interviews, refusal to sign offered contracts, failure to produce original employment letters, and failure to apply for advertised positions. The relationship not having been firmed up in accordance with the transition process, the letters merely affirmed that the appellants had by their own conduct ended the relationship.
Whether the appellants proved their claims for underpayment, leave and Sunday/public holiday pay
The appellants failed to plead or prove these claims
The record contained nothing supporting the claims for monthly wages, leave days, leave allowances, or payments for Sundays and public holidays. The burden was on the appellants to prove underpayment and entitlement to leave and holiday pay, which they failed to discharge.
Legal principles established
#- On a first appeal, the appellate court must re-evaluate and re-analyse the evidence and reach its own conclusions, while not interfering with findings of fact unless based on no evidence, a misapprehension of the evidence, or wrong principles
- Employees of defunct municipal councils were not automatically transferred to county governments unless they were appointed by or under the delegated authority of the Public Service Commission; they were obliged to cooperate in the transition process, including suitability tests and signing new contracts
- Section 37 of the Employment Act (conversion of casual employment to term contracts) does not apply to employees engaged on fixed-term contracts paid monthly, who are governed by Section 35(1)(c) and entitled to twenty-eight days' notice
Court orders
#- 1.The appeal is dismissed in its entirety
- 2.Each party shall bear their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court (ELRC)
- Consolidated suits, numbers not stated
- Jurisdiction invoked
- First appeal to the Court of Appeal against the judgment of the Employment and Labour Relations Court
Relief refused
#Reinstatement to former positions
Not available under Section 12(3)(vii) of the ELRC Act as three years had passed since termination, and the positions had been filled
Declaration that appellants be confirmed as permanent and pensionable employees
Section 37 of the Employment Act applies only to casual employees; the appellants were on three-month renewable contracts falling under Section 35(1)(c)
Damages for unfair/unlawful termination
The appellants declined to sign contracts offered by the respondent and failed to cooperate in the transition process; termination was a consequence of their own conduct
Underpayment wages, leave days/allowances and Sunday/public holiday pay
The appellants neither properly pleaded nor produced any evidence in support of these claims
Costs
Each party shall bear their own costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly, we dismiss the appeal in its entirety. Given the circumstances of this case, we do not find it appropriate to make any orders as to costs. Each party shall therefore bear their own costs.
We find that the appellants did not establish that they were unlawfully dismissed by the respondent, nor did they establish that they were unfairly terminated. The dismissal of their claim for unlawful termination and unfair termination was proper.
The appellants were not entitled to automatic transition as employees from Kehancha Municipal Council to the respondent. They had an obligation to cooperate in the transition process.
Section 35(1)(c) was already applicable to the appellants, and the issue of conversion of their terms under Section 37(1) of the Employment Act to permanent and pensionable did not arise, and their claim in this regard was frivolous.
We agree with the learned Judge that “it is foolhardy for an employee to decline to execute a contract of employment, based on frivolities such as were advanced by the claimants (appellants), and upon termination for such refusal, turn around an allege unfair termination.”
It is evident from their letters of employment, that the appellants were not casual employees.
Issues in the judgment
#The judgment cites 'Jabane vs. Olenja (1968) KLR 661' with a year (1968) that is inconsistent with the known date of that authority, and the same year is given for Selle vs. Associated Motor Boat Co. Limited
The judgment refers to 'Section 137 of the Government County Act' (apparently the County Governments Act) under an inconsistent name
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Pride Inn Paradise Beach Resort & Spa v Rai & 6 others (Appeal E183 of 2024) [2025] KEELRC 1100 (KLR)[2025] KEELRC 1100 (KLR)3 Apr 2025applied
Cite this brief
#Cite this brief
Caselaw, "Marwa & 32 others v County Government of Migori (Civil Appeal 131 of 2019) [2024] KECA 1583 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1583/eng@2024-11-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.