Cherono & 18 others v County Public Service Board of Baringo & 2 others (Petition E022 of 2024) [2026] KEELRC 1826 (KLR) (30 June 2026) (Judgment)

Cherono & 18 others v County Public Service Board of Baringo & 2 others (Petition E022 of 2024) [2026] KEELRC 1826 (KLR) (30 June 2026) (Judgment) Neutral citation: [2026] KEELRC 1826 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nakuru Petition E022 of 2024 J Rika, J June 30, 2026 Between 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 1st Respondent County Secretary, Baringo 2nd Respondent County Government Of Baringo 3rd Respondent Judgment 1.Hearing of this Petition was adjourned multiple times at the instance of the Parties, on the ground that they were negotiating terms of settlement. 2.On 20th June 2025, the Respondents withdrew their preliminary objection, challenging the jurisdiction of the Court. 3.Negotiations were inconclusive. 4.On 1st October 2025, the Petitioners through their Counsel, informed the Court that negotiations had collapsed, and sought a hearing date. 5.On 20th November 2025, Counsel for all the Parties were present in Court, and indicated that they were still negotiating. 6.On 30th January 2026, it was recorded that there was no settlement, and Parties were directed to file and exchange submissions. 7.On 30th April 2026 when the Petition was last mentioned before the Court, the Court was informed that the Respondents had filed their submissions, while the Petitioners undertook to file and serve theirs. 8.The dispute as explained in the Petition dated 11th December 2024, and the affidavit of the lead Petitioner David Cherono sworn on even date, involves the employment of the Petitioners by the County Government of Baringo, through Kabarnet Municipality. 9.The Petitioners were engaged as Casual Employees, for periods ranging from 2 to 10 years. They were paid a daily wage at Kshs. 500. 10.They were engaged in different roles including ICT officers, cleaners, security guards, drivers, building inspectors, receptionists and general clerks. 11.They have experienced numerous challenges on account of their classification for many years, as Casual Employees: salaries have been delayed for as many as 6 months; they are denied medical cover due to non-remittance of statutory deductions to N.H.I.F / S.H.I.F; contributions to N.S.S.F have not been remitted; they are overworked, with no period of annual leave; and are not allowed to join any trade union of their choice, to agitate for their rights and interests. 12.Various agencies have looked into their terms and conditions of service, and all recommended to the County Public Service Board, that they are absorbed into county public service, under permanent and pensionable terms. 13.The Auditor-General has repeatedly found that the employment of the Petitioners for the prolonged periods, on casual terms, offended Section 37 of the Employment Act. 14.The Municipal Manager has engaged the County Public Service Board on the status of the Petitioners. The County Public Service Board in turn, has written to the County Secretary, asking for details of all the Casual Employees, with a view to ratification of conversion to permanent and pensionable Employees. 15.Having committed to convert the Petitioners however, the County Public Service Board has advertised the Petitioners’ positions, for filling by other Employees. It is in bad faith. 16.Against this background, the Petitioners urge the Court to grant the following prayers: -a.Declaration that the Petitioners’ constitutional rights have been violated by the Respondents.b.Declaration that the Petitioners are permanent and pensionable Employees, having worked for 2 to 10 years.c.An order restraining the Respondents from dismissing the Petitioners.d.An order restraining the Respondents from employing other persons in the Petitioners’ positions.e.An order compelling the Respondents to pay the Petitioners pending salaries and annual leave days.f.Damages for violation of constitutional rights.g.Costs.h.Any other suitable order. 17.The Petitioners invoke among others, Articles 27 [3], 41 and 232 of the Constitution, and Section 37 of the Employment Act, in support of the Petition. 18.They submit that they have exhibited their bank statements, payment vouchers, muster rolls, correspondences and internal communications, confirming that that they are long-term Employees of the Respondents, meriting conversion under Section 37 of the Employment Act. 19.They have shown that the roles discharged by them, are of continuous nature. They rely on the decision of the E&LRC in Peter Wambugu Kariuki & 16 Others v. Kenya Agricultural Research Institute [2013] KEELRC 373 [KLR], where it was found that Petitioners who had worked for more than 3 continuous months, merited conversion under Section 37 of the Employment Act. 20.They submit that throughout, they were subjected to unfair labour practices. They have endured unequal treatment with colleagues performing similar roles, on permanent and pensionable terms. The Respondents made a commitment to transition the Petitioners, and their continued dilly-dalliance, perpetuates violation of rights. 21.The Petitioners urge the Court to uphold their Petition. 22.The Respondents as mentioned earlier, filed a notice of preliminary objection challenging the jurisdiction of the Court under Section 77 of the County Governments Act, and Section 87[2] of the Public Service Commission Act. They also objected on the basis of misjoinder and non-joinder of Parties, and on the ground that the Petition is premature. 23.The objection was however withdrawn, and the Court mandated by the Parties to hear and conclude the dispute, in light of their inconclusive negotiations. 24.Chief Officer, Municipality and Urban development in the County Government of Baringo, swore a replying affidavit, on 8th March 2026. 25.He states that the Petition is premature and misconceived. It is denied that the Petitioners were lawfully employed by the Respondents. There was no contract issued to any of the Petitioners by the Respondents, capable of enforcement. 26.The mandate to establish offices in the county public service, is reserved to the 1st Respondent under the County Governments Act. Section 59 empowers the 1st Respondent to appoint county public servants, while Section 74 empowers the 1st Respondent to regulate employment on contract, voluntary and casual terms. 27.The Petitioners were not recruited by the 1st Respondent. Individual departments that may have engaged the Petitioners, did so without the knowledge of the 1st Respondent. Engagement by other persons, other than the 1st Respondent, was ultra vires. 28.The human resource procedure, requires that casual roles are identified by relevant Chief Officers. They are considered within the budgetary provisions. The County Officers submit request through the County Secretary. The County Secretary confirms availability of funds, and places the request before the 1st Respondent. It is for the 1st Respondent to determine if the positions should be filled. If affirmative, there is competitive recruitment. 29.Any engagement without the involvement of the 1st Respondent, cannot bind the Respondents. The Petitioners are seeking to benefit from an unlawful employment. 30.Conversion under Section 37 of the Employment Act, can only be considered where employment is lawful. 31.The Respondents offered to engage the Petitioners on contracts as a way out. They declined contracts, insisting that they ought to be converted to permanent and pensionable terms. 32.The Respondents restate this position, in their closing submissions. 33.The issues are whether, the Petitioners were lawfully engaged as Casual Employees by the Respondents; whether their statutory and constitutional rights have been violated by the Respondents; whether they should be converted to permanent and pensionable terms; and availed other remedies as pleaded. 34.An additional issue identified by the Court, is whether, the withdrawal of the preliminary objection, had the effect of conferring jurisdiction on the Court. The Court Finds: - 35.The Petitioners have not established, that they were recruited as Casual Employees by the 1st Respondent, so as to pursue conversion of their terms of service under Section 37 of the Employment Act. 36.They state that, the County Government of Baringo employed them through Kabarnet Municipality. 37.Such a process of recruitment, involving recruitment of county public service staff through a Municipality, is unknown to the County Governments Act. 38.They state that they have served for 2 to 10 years, suggesting that they were recruited while the County Governments Act, was already in force. Their irregular recruitment cannot be attributed to any grey areas in the law of transitioning to devolved units, from local governments, under the Constitution. 39.Section 59 of the County Governments Act mandates the 1st Respondent to establish and abolish offices in the county public office. It is the role of the 1st Respondent to advise the County Government on human resource management and development. 40.Section 74 mandates the 1st Respondent to regulate the engagement of persons on contract, voluntary and casual terms, and in joint ventures and attachment of interns in its public bodies and offices. 41.The Petitioners seem to have been recruited into their positions irregularly, without the involvement of the 1st Respondent, and it is not proper, that they should pursue conversion by the 1st Respondent, while it was not the 1st Respondent who brought them on board. 42.It would seem that Kabarnet Municipality recruited them, perhaps on the mistaken belief, that it retained a residual power to employ, upon the demise of the local governments and birth of devolved units. It is not surprising that the Municipality Manager has led from the front, in advocating for the regularization of the Petitioners, as county public servants. 43.The Respondents do not dispute, that the Petitioners have been serving under Kabarnet Municipality, the irregularity of their recruitment notwithstanding. 44.There are reports of the Auditor-General, and correspondence between the Respondents and the Kabarnet Municipal Manager, showing that the Petitioners having been serving. 45.They have, in the understanding of the Court, been receiving their daily wages from the Baringo County Government. 46.This however does not cure the irregularity of their recruitment. 47.Section 75 of the County Governments Act, requires that if it comes to the attention of the 1st Respondent, that any process or decision on recruitment, occurred irregularly or fraudulently, the 1st Respondent shall investigate the matter, and may revoke the decision; direct the recruiting person or department to recruit afresh; or take any corrective action, including disciplinary action. 48.The Respondents have known about the Petitioners, for as long as 10 years, and must have investigated, prompted by the constant reminders of the Auditor-General, and internal engagements as shown in the communications involving the 1st Respondent and the Kabarnet Municipality Manager. 49.There is evidence that the 1st Respondent took corrective action, as advised under Section 75 of the County Governments Act, by offering the Petitioners contracts, which they declined, insisting that they are converted to permanent and pensionable terms. 50.They ought in the view of the Court to have accepted the term contracts, even as they continued to pursue permanent and pensionable service. 51.Section 37 of the Employment Act on conversion of terms, does not explicitly state that casual employment becomes permanent and pensionable, upon conversion. 52.It refers to conversion to contract of service, where wages are paid monthly. It states that an Employee whose casual terms are converted, shall be entitled to such terms and conditions of service as he would have been entitled to under the Act, had he not initially been employed as a Casual Employee. 53.The provision also enables the Court, to declare Casual Employee to be employed on terms and conditions of service, consistent with the Act. 54.Terms and conditions of service do not have to be permanent and pensionable, to be consistent with the Act. 55.Limited-term contracts, are consistent with the Act and as long as they are not abused, by being repeatedly applied, to defeat the benefits that come with permanent and pensionable terms, are an acceptable alternative to casual labour. 56.The employment benefits available to Employees on regular terms and conditions of service under the Employment Act, which the Petitioners complain they have been denied on account of their casualization, can be secured through various forms of employment contracts, other than permanent and pensionable contracts. 57.Aware about the infirmity in their recruitment, the Petitioners ought to have accepted the corrective action taken by the 1st Respondent, if only to give the Parties more time to engage and reach an acceptable arrangement. 58.The Court cannot overlook the fact that the Petitioners were not recruited by the 1st Respondent, in accordance with the County Governments Act. It cannot impose an order for conversion, to an employer-employee relationship that was conceived on quicksand. It cannot enforce an employment relationship that was tainted by illegitimacy, from birth. 59.There are no entities, municipalities or persons, who are authorized under the law, to employ staff on behalf of a County Government. The County Governments Act, does not recognize such recruitment agencies. Employment must be in accordance with the County Governments Act. 60.There is no foundation to the submission that the Petitioners’ statutory or constitutional rights have been violated. Their recruitment disregarded basic tenets of employment law on creation of a binding employment contract. It disregarded the principles and values of employment in the public service, under Article 232 of the Constitution and the County Governments Act. 61.The Respondents filed notice of preliminary objection, raising the issue of the Court’s jurisdiction, based on Section 77 of the County Governments Act and Section 87[2] of the Public Service Commission Act. 62.They objected, that the Petition is premature. 63.The County Governments Act and the Public Service Commission Act, confer primary jurisdiction on the Public Service Commission, in disputes involving employment in county public service. 64.The Courts at all levels, have upheld primary jurisdiction of the Public Service Commission over the Courts, in disputes on county public service. 65.Section 89 [1] of the Public Service Commission Act, limits the jurisdiction of this Court to enforcement of decisions made by the Public Service Commission on appeal. 66.Decisions of Superior Courts, such as the Court of Appeal in Secretary, Wajir County Public Service Board & Another v. Hulbhai Gedi Abdille [2017] KECA 643 [KLR], have consistently upheld the jurisdiction of the Public Service Commission on the subject. 67.Ultimately, although the preliminary objection was withdrawn, the Court would still have considerable doubt, on whether it has jurisdiction in this Petition. 68.The position that the Petition is premature, has weight. The Petitioners ought to have given the 1st Respondent adequate time, to take corrective action, on the irregularity of their employment. 69.The Petitioners ought to pursue their grievances further with the 1st Respondent, and relook into the corrective action that was proposed by the 1st Respondent. 70.Failing that mechanism, it is still open to them, to approach the Public Service Commission.It is ordered: -a.The Petition is struck out.b.The Petitioners are at liberty to pursue their grievances with the 1st Respondent, or the Public Service Commission.c.No order on the costs. DATED, SIGNED AND DELIVERED ELECTRONICALLY AT NAKURU, UNDER RULE 68[5] OF THE E&LRC [PROCEDURE] RULES, 2024, THIS 30TH DAY OF JUNE 2026.JAMES RIKAJUDGE