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