Navigating Casual vs Permanent Employment: Lessons from the Kenyatta University v Esther Njeri Maina case

As the world of Employment and Labour Relations continues to evolve, it is important for employers to understand the legal distinctions between casual and permanent employment. The recent Court of Appeal decision in the case of Kenyatta University v Esther Njeri Maina (2022) eKLR serves as a reminder of the implications of not complying with these distinctions.

The Respondent, Esther Njeri Maina, was employed as a secretary by Kenyatta University in August 2009 and had been in continuous employment for almost 10 years. She was being paid a daily wage on a monthly basis and she did not have a written employment contract until 2018 when she was made to sign a fixed-term contract. She worked without any off days, maternity leave, sick leave or annual leave, and argued that her employment was permanent despite being initially employed as a casual employee. The University, on the other hand, stated that it was within their policy to employ casual employees to perform work that was not permanent in nature and that the Respondent executed the contract willingly and should not be allowed to escape the consequences.

The key issue, in this case, was the interpretation of Section 37 of the Employment Act, which states that if an employee works for a period or a number of continuous working days which amount in the aggregate to the equivalent of not less than one month; or performs work which cannot reasonably be expected to be completed within a period, or a number of working days amounting in the aggregate to the equivalent of three months or more, the contract of service of the casual employee shall be deemed to be one where wages are paid monthly and they will be entitled to a month’s notice of termination.

According to Section 35(3), an employee who works continuously for two months or more from the date of employment as a casual employee shall be entitled to such terms and conditions of service as he would have been entitled to had he not initially been employed as a casual employee.

The Employment and Labour Relations Court (Wasilwa J.) found that the Respondent’s employment relationship was not casual but was permanent and pensionable, as provided for in Section 37. Additionally, the Court found that the Respondent’s right to fair labour practices, as guaranteed by Article 41 of the Constitution of Kenya, was violated as she was not issued with permanent terms of employment after three months as a casual employee and was denied minimum terms and conditions of employment as per the Employment Act.

The University appealed the decision of the Employment and Labour Relations court on the grounds that the Judge misapprehended Section 37 of the Employment Act and that the Judge committed an error in ignoring the contract between the employer and employee. However, the Court of Appeal upheld the decision of the Employment and Labour Relations Court and found that the execution of the three-month seasonal contract was a roundabout means by the employer to circumvent the provisions of the law on casual employment. The Court held that an employer cannot have an employee under the guise of casual employment on account of ‘peak’ and ‘off peak’ seasons for such an extended period, and that there was indeed a conversion of the employment from casual to permanent and pensionable.

Furthermore, the Court found that by being retained in casual employment, the Respondent’s Constitutional rights were infringed as she was being denied the rights of a permanent employee. The Court of Appeal reasoned that the evidence showed that the employee had served from 2009, at times continuously for over a year, until 2018 when the Respondent purported to change her terms to a seasonal contract. The Court held that keeping an employee on casual terms as the University did was a violation of the right to fair labour practices as it denied them the guarantee of employment permanency.

The decision of the Court of Appeal cements the position that an employee will benefit from the provisions of Section 37(1) on conversion from casual to permanent terms once they have shown that they were continuously employed for more than three months at a time.

The resolution of this case at the appellate level supports the Judgement made in a related case, Humphrey Nyaga Thomas & 25 others v. Kenyatta University (2021) eKLR.


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