Nyaga & 46 others v Embu County Government & 2 others; Kenya County Government Workers Union (Interested Party) (Constitutional Petition E017 of 2023) [2025] KEELRC 788 (KLR)
The bottom line
#Kenya's Employment Court dismissed 47 Embu enforcement officers' bid for permanent jobs, ruling their fixed-term contracts carried no rights after expiry.
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 petition violates the doctrine of exhaustion of local remedies
- 2.Whether the petition is an afterthought and also overtaken by events
- 3.Whether the respondents violated petitioners' constitutional rights and fundamental freedoms
- 4.Whether the reliefs sought are merited
Key legal issues
#Whether the petition offended the doctrine of exhaustion of remedies under section 77 of the County Government Act and Article 234 of the Constitution
The court overruled the objection because the respondents had participated fully in the proceedings and only raised the issue after the close of hearing.
The court accepted that Article 234(2)(1) and section 77 of the County Government Act provide an alternative appeal mechanism to the PSC, and that the petitioners had not shown the PSC could not grant appropriate relief. However, the respondents had filed voluminous responses and participated until the hearing closed, raising exhaustion only in submissions. The court held it would be a mockery of the court process to allow that, and overruled the point.
Whether the petition was an afterthought and overtaken by events
Yes - the petitioners let their fixed term contracts expire without challenge, participated in the recruitment that replaced them, and sued only three weeks after replacement.
The petitioners knew months in advance that their posts were being advertised; they neither protested nor appealed, but applied, were shortlisted and interviewed, and only sued after missing the appointment list. Relying on the Registered Trustees of the Presbyterian Church of East Africa decision, the court held no rights accrue after expiry of a fixed term contract, and the claim was a knee-jerk reaction.
Whether the respondents violated the petitioners' constitutional rights, including legitimate expectation of conversion to permanent and pensionable terms
The court did not reach a substantive finding; having found the petition an afterthought and untenable, it declared the petition moot and dismissed it.
The court reasoned that a finding that the petition was an afterthought with untenable reliefs rendered the constitutional question academic. The contracts had lapsed, the vacancies were competitively filled, and no relief could issue, including conversion of a non-existent contract under section 37 of the Employment Act, which applies only to casual employment.
Legal principles established
#- Fixed term contracts carry no rights, obligations or expectations beyond their date of expiry.
- Where the Constitution or a statute prescribes an alternative dispute-resolution procedure, that procedure should be strictly followed, but the exhaustion doctrine postpones rather than extinguishes the court's jurisdiction.
- A party who submits to the court's jurisdiction until the close of hearing cannot then raise the exhaustion doctrine to strike out the proceedings.
Court orders
#- 1.The petition is dismissed
- 2.Each party bears own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2) of the Constitution and section 12 of the ELRC Act; Article 22 of the Constitution (enforcement of Bill of Rights)
Relief refused
#Orders restraining the respondents from removing the petitioners from the payroll
The petition was found to be an afterthought and moot; the contracts had lapsed by effluxion of time and no rights accrue after expiry of a fixed term contract.
An order compelling the 2nd respondent to issue clear terms of contract
Not tenable as the petition is moot and dismissed.
A declaration that the petitioners' contracts be converted to permanent and pensionable terms
The court cannot convert a non-existent contract into permanent and pensionable employment; such jurisdiction under section 37 of the Employment Act extends only to casual employment, not fixed-term contracts.
Costs borne by the respondents
Because the petitioners are now jobless, the court directed each party to bear its own costs.
Costs
Each party to bear 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.
In view of my finding above that the petition is an afterthought and the reliefs sought are untenable, I hold that the petition is now a moot case. It will not yield any relief and therefore I hereby dismiss it. Considering that the petitioners are now in the streets without jobs I direct that each party bears own costs.
In the upshot, I hold that the petition is an afterthought and the reliefs sought are untenable.
The court cannot extend the contract term on behalf of the parties nor can it order conversion of a nonexistent contract into a permanent and pensionable employment under section 37 of the Employment Act.
the doctrine of exhaustion does not extinguish the jurisdiction of the court but rather postpones it to allow the alternative remedies to exhaust
It is too late in the day to argue that point and therefore I over rule the same and proceed to determine the petition.
Issues in the judgment
#The court refers to 'Registered Trustees of the Presbyterian Church of East Africa & 2 others, supra' as if earlier cited, but the case does not appear anywhere earlier in the judgment; its citation is not given.
The judgment does not state the petition's case number or a neutral citation.
The parties are not named individually anywhere in the judgment text; only 'the 1st Petitioner on behalf of the 47 petitioners' is mentioned, and the full names of the respondents and the interested party are not given.
The court dismissed the petition as moot without making an express finding on the pleaded constitutional violations, leaving issue (c) unanswered in terms.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyaga & 46 others v Embu County Government & 2 others; Kenya County Government Workers Union (Interested Party) (Constitutional Petition E017 of 2023) [2025] KEELRC 788 (KLR)", Case Analysis (2025). Petition dated 17th November 2023 (number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/788/eng@2025-03-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.