Mukopi & 9 others v Nairobi County Government & 2 others
The bottom line
#The Employment Court dismissed ten former NMS workers' claims, ruling that fixed-term contracts end on expiry and salary payments alone don't create employment.
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 claimants were employees of the NMS, the 1st respondent or the 2nd respondent
- 2.Whether payment of salaries by the 1st respondent after disbandment of NMS converted the claimants into its employees
- 3.Whether the PSC Circular dated 3rd August 2021 applied to the claimants and created a legitimate expectation of conversion to permanent and pensionable terms
- 4.Whether the Framework for the Handover of transferred functions obligated the respondents to absorb or deploy the claimants
- 5.Whether the 1st and 3rd respondents discriminated against the claimants by singling them out
- 6.Whether the claimants' rights to fair administrative action and fair labour practices were violated
Key legal issues
#Identity of employer
The claimants were employees of the defunct NMS, recruited by the PSC on three-year fixed term contracts tied to the Deed of Transfer, not employees of the County Government, CPSB or PSC
CWI admitted on cross-examination he was employed by NMS and had no contract with the County Government, CPSB or PSC. The Deed of Transfer contemplated secondment and fixed term recruitment; the offer letter required execution of a three-year contract. The court assumed all claimants received similar letters and held their employer was NMS.
Effect of continued payment after disbandment of NMS
Payment of salaries by the County Government for the remainder of the fixed term did not transition the claimants into its employees
The earlier written contracts with NMS were still running and the County Government was honouring commitments under the Deed of Transfer. Supervision, control and payment for the remainder of the term did not create an indefinite employment relationship, and a Governor's promise does not bind the county or the CPSB.
Applicability of the PSC Circular of 3rd August 2021 and legitimate expectation
The Circular applied only to authorised officers under PSC jurisdiction in MDAs, not to county governments or NMS; no legitimate expectation of conversion arose
'Authorised Officer' is statutorily defined under Section 2 of the Public Service Commission Act as an officer appointed by the Commission in a ministry or state department. NMS was a temporary special purpose vehicle, not a state agency. An inter-governmental circular would have been addressed to, among others, the Council of Governors.
Framework for Handover of transferred functions
Clause 3.3(b) made absorption discretionary, subject to vacancies and county needs; Clause 3.3(c) could not bind the PSC which was not party to the Framework
The Framework was a contract between the Cabinet Secretary and the Governor, neither of whom is an accounting officer or implementing agency. Absorption was not automatic. The privity rule bars enforcement against the non-signatory PSC, and the copy on record had missing pages.
Discrimination
No prima facie case of discrimination was established; failure to shortlist or employ does not amount to discrimination
Neither counsel submitted substantively on discrimination. The claimants led no evidence of who was or was not employed, or of vacancies. The claim that only 10 of over 2000 former NMS employees were not absorbed lacked probative value. Section 5(3) of the Employment Act and Article 27 prohibit discrimination, but the claimants discharged no initial burden.
Legal principles established
#- A fixed term contract carries no rights, obligations or expectation beyond its expiry date; non-renewal is not unfair termination
- Payment of salary by a third party for the remainder of a fixed term contract does not convert the employee into that party's employee
- Only the County Public Service Board has statutory power to employ public officers at the county level; a Governor's promise does not bind the county or the CPSB
- An employee must first establish a prima facie case of discrimination before the burden shifts to the employer under Section 5(7) of the Employment Act
- Only parties privy to a contract are bound by it
Court orders
#- 1.The claimants' suit against the respondents is dismissed
- 2.Parties shall bear their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under Article 162(2) of the Constitution over employment and labour relations disputes
Relief refused
#Order compelling respondents to implement the circular's agreements / convert claimants to permanent and pensionable terms
The PSC Circular did not apply to county governments or NMS; no legitimate expectation arose
Redeployment to other government departments
Clause 3.3(c) of the Framework was unenforceable as the PSC was not privy to it
Declarations of violation of Articles 27, 28 and 41 and compensation/damages
Claimants failed to discharge the initial burden of establishing a prima facie case of discrimination; no evidence of violation of fair administrative action or fair labour practices
Costs
Parties 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.
Flowing from the foregoing analysis, it is discernible that the claimants' case against the respondents is devoid of merit and it is accordingly dismissed.
Parties shall bear their own costs.
fixed term contract carries no rights obligations or expectation beyond the date of expiry
payment of salary for the reminder of their contract was not sufficient to make them employees of the 1st respondent
It is the only body with statutory power to employ public officers at the county level of government.
the claimants did not discharge the initial burden of proof of establishing a prima facie case of discrimination against the 1st or the 3rd Respondents
Issues in the judgment
#Circular date inconsistency: 3rd August 2021 vs 3rd March 2021
Contract end date inconsistency for CWI's offer letter
Paragraph numbering skips from 85 to 87
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mukopi & 9 others v Nairobi County Government & 2 others", Case Analysis (2026). Cause E1045 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2481/eng@2026-09-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.