The Kenyan Court of Appeal has delivered a landmark ruling that challenges the widespread practice of keeping employees on rolling short-term contracts for extended periods. The three-judge bench held that workers performing continuous, long-term duties cannot be indefinitely retained on renewable temporary contracts simply due to employer labeling.

Key Findings

  • Employees engaged in ongoing, permanent work are entitled to permanent and pensionable status despite contract labels.
  • Labour courts must examine the substance of employment relationships over contract titles when determining workers' rights.
  • Prolonged insecure employment violates the constitutional right to fair labour practices under Article 41.
  • Employers cannot evade statutory protections by repeatedly renewing fixed-term contracts for permanent roles.

Case Background

The ruling arose from a petition by the Kenya County Government Workers' Union representing about 256 health workers employed by Embu County. Many had served for years, some over two decades, on contracts renewed every few months or annually, despite performing permanent duties.

Following devolution, Embu County inherited these workers but continued to engage them on short-term contracts without providing pension, annual leave, or other permanent staff benefits. The union argued this amounted to unfair labour practices and contract misuse.

Court's Decision

The appellate court overturned a 2020 Employment and Labour Relations Court ruling that had dismissed the workers' petition. It found the lower court failed to assess the true nature of the employment relationship and ignored constitutional and statutory labour protections.

Justices Sankale Ole Kantai, Jessie Lesiit, and Abida Ali-Aroni emphasized that contract labels are not decisive and that continuous service in permanent roles entitles workers to statutory protections and permanent employment.

The court ordered Embu County Government to regularise the affected health workers by placing them on permanent and pensionable terms immediately.

Implications

This decision sets a precedent that could impact both public and private sector employers nationwide, who often rely on rolling fixed-term contracts to manage staffing costs. It underscores the legal risks of circumventing employment laws and highlights the need for fair labour practices.

While the court dismissed claims of pay discrimination due to insufficient evidence, the ruling reinforces workers' rights to job security and benefits when performing continuous permanent duties.