[2024] KEELRC 13458 (KLR)
The Court found that the Petitioners had established a strong prima facie case for the grant of injunctive and conservatory orders. The evidence demonstrated that the Petitioners had been continuously engaged by the Respondents for periods ranging from 2 to 10 years, yet were still classified as casual employees in...
Source-derived case information.
- Citation
- [2024] KEELRC 13458 (KLR)
- Parties
- Applicant: David Cherono; Applicant: Samuel Kulei; Applicant: Luka Cherutich; Applicant: Alice Chelagat; Applicant: Dorcas Chongwo; Applicant: Ivvone Jerop Rono; Applicant: Daniel Kemei; Applicant: Benson Kiplangat; Applicant: Johnstone Kandie; Applicant: Kendagor Isaac; Applicant: Douglas Chepchieng; Applicant: Nicholas Toroitich; Applicant: Winnie Chebon; Applicant: Moses Kosgei; Applicant: Augustine Toroitich; Applicant: Alfred Kiplagat; Applicant: Judy Kiplagat; Applicant: Winnie Kemboi; Applicant: Anthony Kibet; Respondent: County Public Service Board of Baringo; Respondent: County Secretary, Baringo; Respondent: County Government of Baringo
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Petition E022 of 2024
- Procedural Posture
- Constitutional Petition / Ruling on Interim Injunctive and Conservatory Relief
- Outcome
- Interim injunctive and conservatory orders granted pending inter partes hearing.
- Judges
- J Rika
- Legal Topics
- Casual Employment, Conversion to Permanent Terms, Right to Fair Labour Practices, Injunctive Relief, Public Service Employment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Cherono
Applicant
Samuel Kulei
Applicant
Luka Cherutich
Applicant
Alice Chelagat
Applicant
Dorcas Chongwo
Applicant
Ivvone Jerop Rono
Applicant
Daniel Kemei
Applicant
Benson Kiplangat
Applicant
Johnstone Kandie
Applicant
Kendagor Isaac
Applicant
Douglas Chepchieng
Applicant
Nicholas Toroitich
Applicant
Winnie Chebon
Applicant
Moses Kosgei
Applicant
Augustine Toroitich
Applicant
Alfred Kiplagat
Applicant
Judy Kiplagat
Applicant
Winnie Kemboi
Applicant
Anthony Kibet
Applicant
County Public Service Board of Baringo
Respondent
County Secretary, Baringo
Respondent
County Government of Baringo
Respondent
Procedural Posture
Constitutional Petition / Ruling on Interim Injunctive and Conservatory Relief
Legal Issues
- 1 Whether the Petitioners have established a prima facie case for grant of injunctive and conservatory orders pending hearing of the Petition.
- 2 Whether continued classification of Petitioners as casual employees violates the Employment Act and their constitutional rights.
- 3 Whether the Respondents' actions in advertising and seeking to fill the Petitioners' positions amount to unfair labour practices.
Ratio Decidendi
The Court found that the Petitioners had established a strong prima facie case for the grant of injunctive and conservatory orders. The evidence demonstrated that the Petitioners had been continuously engaged by the Respondents for periods ranging from 2 to 10 years, yet were still classified as casual employees in violation of the Employment Act. Documentary evidence, including payroll records, muster rolls, and correspondence from the Municipal Manager and Auditor General, confirmed the Petitioners' ongoing service and the need for regularization. The Respondents' actions in advertising and seeking to fill the Petitioners' positions, as well as the threat of termination, posed a real...
Court Disposition
Interim injunctive and conservatory orders granted pending inter partes hearing.
Orders
- The Application is certified urgent and service is dispensed with in the first instance.
- The Application and Petition shall be served upon the Respondents.
Full Case Text
Judgment text and source record
70 paragraphs
Cherono & 18 others; County Public Service Board of Baringo & 2 others (Respondent) (Petition E022 of 2024) [2024] KEELRC 13458 (KLR) (17 December 2024) (Ruling)
Neutral citation: [2024] KEELRC 13458 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Nakuru
Petition E022 of 2024
J Rika, J
December 17, 2024
In the matter of
David Cherono
1st Petitioner
Samuel Kulei
2nd Petitioner
Luka Cherutich
3rd Petitioner
Alice Chelagat
4th Petitioner
Dorcas Chongwo
5th Petitioner
Ivvone Jerop Rono
6th Petitioner
Daniel Kemei
7th Petitioner
Benson Kiplangat
8th Petitioner
Johnstone Kandie
9th Petitioner
Kendagor Isaac
10th Petitioner
Douglas Chepchieng
11th Petitioner
Nicholas Toroitich
12th Petitioner
Winnie Chebon
13th Petitioner
Moses Kosgei
14th Petitioner
Augustine Toroitich
15th Petitioner
Alfred Kiplagat
16th Petitioner
Judy Kiplagat
17th Petitioner
Winnie Kemboi
18th Petitioner
Anthony Kibet
19th Petitioner
and
County Public Service Board of Baringo
Respondent
County Secretary, Baringo
Respondent
County Government of Baringo
Respondent
Ruling
1. The Petitioners have approached the Court for injunctive and conservatory measures, under certificate of urgency.
2. They pray in main, for orders, that: -a.The Application is certified urgent and service is dispensed with in the first instance.b.Pending inter partes hearing and determination of the Application, a temporary order of injunction issues, restraining the Respondents, their agents, officers and /or servants from terminating the employment of the Petitioners.c.Pending hearing and determination of the Petition, a conservatory order issues, retraining the Respondents from harassing [the Petitioners], recruiting, employing or otherwise filling the positions held by the Petitioners and /or otherwise interfering with their continued employment.
3. The Petitioners, through the Lead Petitioner David Cherono, state that they were engaged by the 3rd Respondent, through Kabarnet Municipality, in various positions, including ICT officers, cleaners, security guards, drivers, building inspectors, receptionists and general clerks.
4. They were engaged for periods from 2 to 10 years.
5. The Auditor General and the Municipal Manager engaged the County Public Service Board, asking for regularization of the Petitioners’ service. The Respondents continued to classify them as Casual Employees, against the provisions of the Employment Act.
6. Despite the undertaking previously given by the 3rd Respondent to regularize their service, the 1st Respondent has advertised some of the positions held by the Petitioners.
7. Their substantive prayers are that, the Court declares their constitutional rights have been violated by the Respondents; that they merit conversion to permanent and pensionable service; and an order prohibiting the Respondents from replacing them, among other substantive orders.
The Court Finds:- 8. The Petitioners have established a strong prima facie case, warranting injunctive and conservatory measures.
9. They have exhibited bank statements to show that they are on the payroll of the Respondents. They have exhibited instructions given by the 3rd Respondent’s Municipal Manager, authorising payment of their wages. The authorisation lists, refer to them as Casual Employees. They have exhibited muster rolls showing continuous monthly service.
10. There is documentary evidence, showing that the employment status of the Petitioners, has long been discussed by the Respondents and other relevant authorities.
11. On 28th April 2023, the Municipal Manager wrote to the Chairman, Baringo County Assembly Labour Committee, submitting a list of the Petitioners, seeking regularization of their service.
12. The 2nd Respondent wrote an advisory dated 7th July 2023, again asking for a complete list of the Petitioners, to enable the Respondents deliberate and ratify their decision on the Petitioners.
13. The Report of the Auditor General, dated 16th May 2024, confirms that the Respondents had engaged Employees on casual terms for over 12 months, against the Employment Act. It is an audit query which does not seem to have been addressed by the Respondents, necessitating the presentation of this Petition.
14. The Petition, against this background, was long in coming.
15. The Petitioners merit the orders sought.It is ordered : -a.The Application is certified urgent, and service dispensed with in the first instance.b.The Application and Petition, shall be served upon the Respondents.c.The Respondents shall file and serve their Responses to the Application and the Petition, within 21 days of service.d.Pending hearing and determination of the Application inter partes, an order of temporary injunction is granted, restraining the Respondents, their agents, officers and / or servants, from terminating the employment of the Petitioners.e.Pending hearing and determination of the Application inter partes, a conservatory order is granted restraining the Respondents from recruiting, employing, or otherwise filling the positions held by the Petitioners and/ or interfering with the Petitioners’ continued employment.f.Hearing of the Application inter partes, on 4th February 2025.
DATED, SIGNED AND RELEASED TO THE PARTIES ELECTRONICALLY AT NAKURU, THIS 17TH DAY OF DECEMBER 2024. JAMES RIKAJUDGE