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ELRCDismissedCause E1045 of 2023

Mukopi & 9 others v Nairobi County Government & 2 others

Employment and Labour Relations Court
22 September 2026
6,164 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~25 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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Ten former employees of the defunct Nairobi Metropolitan Services (NMS), recruited by the Public Service Commission on three-year fixed term contracts tied to the Deed of Transfer of 25th February 2020, sued the Nairobi County Government, the Public Service Commission and the Nairobi County Public Service Board alleging wrongful, unfair and unlawful discrimination in the hiring process and violation of their rights to fair labour practices and fair administrative action. They sought implementation of a PSC circular converting them to permanent and pensionable terms, or absorption or redeployment, declarations under Articles 27, 28 and 41, compensation, damages and costs. The court found the claimants were employees of the NMS, recruited by the PSC, and that the County Government's payment of their salaries for the remainder of the fixed term after NMS's disbandment did not convert them into its employees. The PSC Circular of 3rd August 2021, addressed to 'Authorised Officers' as statutorily defined, did not apply to county governments or the NMS, so no legitimate expectation of conversion arose. Clause 3.3(b) of the Handover Framework made absorption discretionary, subject to vacancies and county needs, while Clause 3.3(c) could not bind the PSC, which was not party to the Framework. A Governor's promise does not bind the county or the CPSB, the only body with statutory power to employ at county level. The claimants failed to establish a prima facie case of discrimination, and no violation of fair administrative action or fair labour practices was proved. The suit was dismissed with each party bearing its own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the claimants were employees of the NMS, the 1st respondent or the 2nd respondent
  2. 2.Whether payment of salaries by the 1st respondent after disbandment of NMS converted the claimants into its employees
  3. 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. 4.Whether the Framework for the Handover of transferred functions obligated the respondents to absorb or deploy the claimants
  5. 5.Whether the 1st and 3rd respondents discriminated against the claimants by singling them out
  6. 6.Whether the claimants' rights to fair administrative action and fair labour practices were violated

Key legal issues

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01

Identity of employer

Holding

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

Reasoning

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.

p. 8
02

Effect of continued payment after disbandment of NMS

Holding

Payment of salaries by the County Government for the remainder of the fixed term did not transition the claimants into its employees

Reasoning

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.

p. 9
03

Applicability of the PSC Circular of 3rd August 2021 and legitimate expectation

Holding

The Circular applied only to authorised officers under PSC jurisdiction in MDAs, not to county governments or NMS; no legitimate expectation of conversion arose

Reasoning

'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.

04

Framework for Handover of transferred functions

Holding

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

Reasoning

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.

p. 9
05

Discrimination

Holding

No prima facie case of discrimination was established; failure to shortlist or employ does not amount to discrimination

Reasoning

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.

p. 12

Legal principles established

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  • 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

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  1. 1.The claimants' suit against the respondents is dismissed
  2. 2.Parties shall bear their own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

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

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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

p. 11

Redeployment to other government departments

Clause 3.3(c) of the Framework was unenforceable as the PSC was not privy to it

p. 10

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

p. 12

Costs

Parties shall bear their own costs.

Quotable passages

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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.
p. 12Disposition - dismissal of the suit
Parties shall bear their own costs.
p. 12Costs order
fixed term contract carries no rights obligations or expectation beyond the date of expiry
Fixed term contracts
payment of salary for the reminder of their contract was not sufficient to make them employees of the 1st respondent
p. 8Effect of payment of salaries by a third party
It is the only body with statutory power to employ public officers at the county level of government.
p. 9CPSB's exclusive statutory power to employ at county level
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
p. 12Burden of proof in discrimination claims

Issues in the judgment

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minor

Circular date inconsistency: 3rd August 2021 vs 3rd March 2021

minor

Contract end date inconsistency for CWI's offer letter

minor

Paragraph numbering skips from 85 to 87

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.