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Court of AppealDismissedNot stated in the judgment· [2024] KECA 1583 (KLR)

John Ngariba Marwa & 32 Others v County Government of Migori

Court of Appeal of Kenya
8 November 2024
5,334 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a first appeal before the Court of Appeal at Kisumu against the judgment of the Employment and Labour Relations Court of 6th December 2018, which dismissed consolidated claims by 33 former employees of the defunct Kehancha Municipal Council against the County Government of Migori. The appellants, engaged on three-month renewable temporary contracts between 2008 and 2012, contended that on the transition to devolved government they became regular employees of the respondent and that their employment ripened into permanent and pensionable terms; their services were terminated on 31st March 2015 without notice or a fair process. They sought reinstatement, confirmation as permanent employees, damages, underpayment wages, leave and Sunday/public holiday pay. The Court of Appeal, re-evaluating the evidence as required on a first appeal, affirmed the trial court. It held that the appellants were not casual employees but held three-month contracts paid monthly, governed by Section 35(1)(c) of the Employment Act, so Section 37 conversion to permanent terms did not arise. Automatic transition under the County Governments Act applied only to employees appointed by or under the delegated authority of the Public Service Commission; the appellants did not qualify and were obliged to cooperate in the suitability test and sign new contracts, which they refused to do. Their termination letters, though not notices, merely affirmed that the appellants had by their own conduct ended the relationship. The claims for underpayment, leave and holiday pay failed for want of pleading and proof. The appeal was dismissed in its entirety, with each party bearing its own costs.

Key legal issues

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01

Whether the appellants were automatically absorbed into the respondent's employment on transition from Kehancha Municipal Council

Holding

No automatic transition occurred; the appellants were not appointed by the Public Service Commission and failed to cooperate with the transition process

Reasoning

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.

p. 6
02

Whether continued service converted the appellants' temporary contracts into permanent and pensionable terms under Sections 35 and 37 of the Employment Act

Holding

No; the appellants were not casual employees but held three-month renewable contracts paid monthly, which fell under Section 35(1)(c)

Reasoning

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.

p. 9
03

Whether the termination was unlawful for want of notice under Section 35 of the Employment Act

Holding

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

Reasoning

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.

p. 10
04

Whether the appellants proved their claims for underpayment, leave and Sunday/public holiday pay

Holding

The appellants failed to plead or prove these claims

Reasoning

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.

p. 10

Legal principles established

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  • 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

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  1. 1.The appeal is dismissed in its entirety
  2. 2.Each party shall bear their own costs
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

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "John Ngariba Marwa & 32 Others v County Government of Migori", 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.