The Court of Appeal has upheld key elements of the Employment and Labour Relations Court’s judgment concerning the employment status of twenty-five respondents by Kenyatta University.
The respondents had claimed they were unlawfully engaged as casual employees for over a decade, without formal written terms, and sought recognition of their employment rights and damages for constitutional violations.
The three judges, Hon Justice Daniel Musinga, Justice George Vincent Odunga, and Justice Francis Tuiyott examined whether the University discriminated against the respondents by labeling them as casuals despite their long service, and whether it violated the Constitution and employment laws.
While the trial court found that the respondents’ employment was irregular and ordered their conversion into permanent employees, the Court of Appeal clarified that the distinction between casual and fixed-term employment depends on the actual nature of engagement and the legal framework.
The Court emphasized that the University, a public institution, had the discretion to engage employees on different terms based on the nature of their work—core versus non-core activities.
The Court held that the respondents’ long, intermittent service on a casual basis did not amount to unlawful discrimination, given the context and the University’s categorization of their roles.
However, the Court agreed with the trial court that the memo dated 9th July 2018, which attempted to formalize casual employment through seasonal contracts, was null and of no legal effect.
It also ordered that unpaid overtime be paid within three years prior to the petition, aligning with statutory limitation periods.
