County Government of Bomet v Kenya County Government Workers Union & another (Civil Appeal E084 of 2024) [2025] KECA 1311 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that county workers kept on the job for years after their contracts expired become permanent employees.
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 appellant's right to be heard was violated by the learned Judge
- 2.Whether there existed an employer-employee relationship between the grievants and the appellants
Key legal issues
#Whether the appellant's right to a fair hearing was violated
No violation. The appellant never filed a response or defence to the memorandum of claim, only a replying affidavit to the application; no pleadings were struck out and the claim was properly determined as undefended.
Rule 13 of the ELRC (Procedure) Rules, 2016 requires a respondent to enter appearance and file a response within 21 days. The trial Judge directed the appellant to file responses, witness statements and documents within 14 days of the ruling of 22nd March 2023; the appellant squandered that opportunity. The term 'striking out' was a misnomer as no such order was made, and Article 159(2)(d) cannot rescue a party in default of clear procedural rules.
Whether an employer-employee relationship existed between the grievants and the appellant
Yes. By continuing to retain the grievants on the same jobs and paying their salaries and benefits for over seven years after their two-year fixed-term contracts lapsed, the appellant and the 2nd respondent tacitly accepted them as permanent employees.
Applying the three-stage tacit contract synthesis test to uncontroverted facts, the Court found the conduct of the parties unequivocal: the grievants worked continuously from 1st October 2015 for over seven years with full pay and benefits. Under sections 9(1) and 10(1) of the Employment Act the employer was obliged to issue written contracts, and having failed to do so, could not 'extend' contracts never issued. The 30th September 2022 notices were a 'trojan horse' - terminations disguised as extensions.
Whether the appointments were void ab initio for want of recruitment by the County Public Service Board
No. The Court found the argument unconvincing and rejected it, noting the appellant's contradictory position of purporting to 'extend' allegedly illegal contracts and inviting 'illegal' employees to re-apply.
While the 2nd respondent is the only legally mandated recruiting authority, it took no action for over seven years to nullify the appointments. The Court held that the doctrine of approbate and reprobate bars the appellant from asserting the appointments were void after treating them as valid, and the 30th September 2022 notice was in reality a termination letter.
Legal principles established
#- A fixed-term employment contract that expires and the employee continues working with the employer's consent is typically deemed to be of indefinite duration, but continuation of work does not automatically convert fixed-term employment into permanent employment; the inference depends on the facts
- A tacit contract is established through a three-stage synthesis test: establishing the facts on a balance of probabilities, deciding what conclusion consistent with those facts is correct, and determining how the proved facts and conduct were probably interpreted by the parties
- A litigant who fails to file a defence to a civil suit cannot, once the cause is determined as undefended, invoke the right to be heard or seek refuge in Article 159(2)(d) of the Constitution
- Article 159(2)(d) is not a panacea for deficiencies in observance of procedure and cannot be used as a shortcut or cover for ineptness or dereliction of duty
- An employer who retains an employee for more than three months without a written contract is under a statutory obligation to draw up a written contract, and failing to produce it, cannot unilaterally vary or extend contracts it never issued
- A party cannot approbate and reprobate - it cannot treat a transaction as valid to obtain an advantage and then as void to secure another advantage
- An appellate court will not lightly interfere with a trial judge's findings of fact unless they are based on no evidence or the judge demonstrably acted on wrong principles
- Devolution is not a tool for political patronage or fiefdom; election to a county office does not confer a licence to hire and fire at whim - recruitment and termination must strictly follow the law
Court orders
#- 1.Appeal dismissed
- 2.Costs of the appeal awarded to the 1st respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court, Kericho
- Not stated in judgment
- Jurisdiction invoked
- First appellate jurisdiction over the ELRC under Article 164 of the Constitution (not expressly cited in the judgment; the Court described its duty as 'This being a first appeal, our duty is to re-assess the evidence on record and arrive at our own independent conclusions')
Relief refused
#Setting aside the ELRC judgment of 29th February 2024 and dismissal of the claim before the ELRC at Kericho, as prayed by the appellant
The appeal was devoid of merit; the trial Judge afforded the appellant a right to be heard, and the uncontested facts established an employer-employee relationship
Costs
Appeal dismissed with costs to the 1st respondent
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.
We have said enough to demonstrate this appeal is devoid of merit. Accordingly, we hereby dismiss this appeal with costs to the 1st respondent.
by continuing to retain the grievants on the same jobs and continuing to pay them their salaries and benefits for over 7 years, the appellant and the 2nd respondent accepted them as permanent employees, tacitly.
a litigant cannot fail to file a defence to civil suit and once the cause is determined as undefended, purport to invoke the constitutional right to be heard or seek refuge in Article 159 (2) (d).
This Article is not and it was not meant to be a panacea for all the deficiencies in observance of laid down procedures, nor was it meant to throw out through the window the rules of procedure. It cannot be used as a shortcut or a cover for ineptness or dereliction of duty.
In order to establish a tacit contract, it is necessary to prove, on a preponderance of probabilities, conduct and circumstances that are so unequivocal that the parties must have been satisfied that they were in agreement.
Election to an office in the County Government does not therefore give one a fiat to hire and fire at whim. Any process of recruitment and termination must strictly be in accordance with the law.
A party should not adduce evidence from the bar or through submissions.
the appellant and the 2nd respondent cannot extend contracts they never issued in the first place.
Issues in the judgment
#The name of the leading Supreme Court authority on Article 159(2)(d) is printed as 'Raila Qdinga' rather than 'Raila Odinga' in the judgment text
The judgment does not state the case number of the ELRC decision appealed from, only that it was delivered at Kericho on 29th February 2024
The coram lists the three Judges of Appeal without designating an author of the single judgment
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.
- Insight Management Consultants Limited v Silungi (Appeal E066 of 2025) [2025] KEELRC 2553 (KLR)[2025] KEELRC 2553 (KLR)25 Sept 2025followed
Cite this brief
#Cite this brief
Caselaw, "County Government of Bomet v Kenya County Government Workers Union & another (Civil Appeal E084 of 2024) [2025] KECA 1311 (KLR)", Case Analysis (2025). Civil Appeal (first appeal from ELRC Kericho, judgment dated 29th February 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1311/eng@2025-07-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.