https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1481

Kenya County Government Workers' Union v Embu County Government & another (Civil Appeal 178 of 2020) [2026] KECA 1481 (KLR) (24 July 2026) (Judgment) Neutral citation: [2026] KECA 1481 (KLR) Republic of Kenya In the Court of Appeal at Nyeri Civil Appeal 178 of 2020 S ole Kantai, JW Lessit & A Ali-Aroni, JJA July 24, 2026 Between Kenya County Government Workers' Union Appellant and Embu County Government 1st Respondent Embu County Government Public Service Board 2nd Respondent (Being an appeal from the Judgment of the Employment and Labour Relations Court at Meru (Nzioki Wa Makau, J.) delivered on 24th June, 2020inELRC Petition No. 7 of 2019) Judgment 1.This appeal relates to a legal battle initiated by the appellant, in pursuit of fair labour practices for its members, against allegations that the respondents have violated the constitutional and employment rights of its members. In a petition filed in the Employment and Labour Relations Court (ELRC), the appellant claimed, inter alia, that its members faced discrimination, inequality in salary payments, and implied labour malpractice. 2.In the petition dated 7th August 2019, the appellant sought for: a declaration that the respondents violated the appellant's members’ right to fair labour practices under Article 41(1) of the Constitution and the Employment Act (‘the Act’); an order of variation of terms of service seeking to change the employment status from casual employees to permanent and pensionable terms as per the Act, and sought their immediate absorption into these roles; an injunction preventing the respondents from recruiting new employees until all long-serving members are absorbed into permanent positions and to restrain the respondents from terminating any member's employment without due process; a declaration that the respondents violated the right to equal pay for equal value without justification, as outlined in section 5(5) of the Act, and that discrimination against members occurred in violation of Article 27 of the Constitution and section 5 of the Act. 3.The appellant’s petition was supported by an affidavit sworn by Roba Duba, the National Secretary General of the appellant, dated 7th August 2019. He asserted that its members were initially engaged by the National Government through the Ministry of Health and the Hospital Management Board in Embu. The 1st respondent inherited the staff, contracts, and liabilities of these individuals following the promulgation of the new Constitution of Kenya, 2010. The appellant's members were hired under varying contractual periods ranging from 3 months, 6 months, to 1 year and were assigned duties of a permanent nature, some of which have been performed for over 20 years under their casual terms of employment. Upon the expiry of their limited contractual terms, the respondents did not communicate any information regarding their employment status or renew the contracts, leaving the appellant’s members in a state of anxiety, as they had legitimate expectations of renewal of terms of employment from casual to permanent. 4.In 2011, the National Government, through the Ministry of Health, recruited new casual employees through a program known as the Economic Stimulus Program, which was established before the promulgation of the new Constitution. Several casual health employees under this program were deployed to Embu Health Facilities for a 3-year contractual period, after which they were all absorbed into permanent and pensionable employment. This was done without regard to the appellant’s members, who remain long-serving casual health employees, despite their applications for the same positions and their comparable qualifications, skills, and experience, thereby constituting discrimination. 5.Furthermore, it was stated that on 24th September 2018, the 1st respondent invited the appellant's members under the Hospital Management Board to participate in a re-vetting exercise aimed at assessing their suitability for work and facilitating the renewal of their contracts. On various dates in 2018, the 1st respondent began issuing recommendation letters to the appellant's members, indicating that they were recommended for employment elsewhere while still in their current positions. It is deposed that the respondents' arbitrary actions left the appellant’s members in a state of uncertainty and apprehension, believing that the respondents intended to constructively terminate their services. 6.In opposition, Grace Muriithi, the Chief Officer of the 1st respondent’s department of health, filed a replying affidavit sworn on 13th February 2020 in response to the petition. She averred that there was no evidence that the individuals listed in the supporting affidavit were members of the appellant, nor that the appellant had the authority to bring the petition on their behalf. While she acknowledged that the individuals were employed in various health facilities operated and managed by the 1st respondent, she denied that they were employed as casual workers, as claimed by the appellant. She asserted that these workers were engaged by the former hospital management boards on fixed-term contracts ranging from three months to one year before health functions were devolved from the national government. 7.She further stated that once the office of the 2nd respondent was established, it began the process of streamlining the workforce of the 1st respondent and took over the responsibility of hiring workers in the county. Consequently, the 2nd respondent appointed the appellant's members on contractual terms of service as stipulated under the Employment Act. These contracts also varied in duration from three months to one year. 8.She emphasised that the 2nd respondent had been renewing the contracts of the appellant's members, refuting the claim that there had been no communication regarding their employment status. The 1st respondent denied that they had engaged the appellant's members under casual employment terms, as well as the existence of casual employees posted to Embu, as alleged by the appellant. She stated that the only employees on contract were those the respondents had inherited from various hospital management boards. 9.She mentioned that the 2nd respondent had occasionally advertised various positions held by the appellant's members and encouraged them to apply. Hospitals issued letters recommending these members for absorption into long-term contracts. She confirmed that all of the appellant's members were on contracts and none had been dismissed or issued termination notices. According to her, the respondents had attempted to offer better employment terms to the appellant's members, as shown in their employment contracts. 10.She stated further that all County employees were employed on fixed-term contracts that were renewable based on performance, dismissing the claim that the appellant's members had faced any form of discrimination. She opined that a fixed-term contract was non-discriminatory and argued that the appellant was using the court to change the contractual terms between the respondents and their employees. She accused the appellant of employing mob psychology to pressure the respondents into hiring unsuitable and unqualified individuals, given that some members did not possess the minimum required educational qualifications. She maintained that the 2nd respondent had not violated the rights of the appellant’s members as alleged in the petition and had not subjected its employees to unfair labour practices. She contended that the petition was premature, as the appellant had not demonstrated that its members’ jobs were at risk. All members had their contracts renewed, often with more favourable terms than those offered by their previous employers. 11.Matilda Kimetto, the Deputy National Secretary General of the appellant, filed a supplementary affidavit sworn on 28th February 2020 in response to the replying affidavit. She argued that the respondents had engaged the appellant's members only on a casual basis, without making any effort to regularise their employment. She contended that the respondents did not provide any evidence to show that the appellant's members were engaged under any contractual terms. According to her, the respondents had openly admitted to advertising positions held by the appellant’s members on multiple occasions. 12.Johnson N. Nyaga, the County Secretary of the 1st respondent, filed a further affidavit sworn on 6th March 2020. He acknowledged that the respondents admitted that the listed individuals were employees of the respondents, but denied that the appellants were employed as casual workers, as alleged. He stated that the appellant’s members were initially employed by the hospital management boards prior to devolution and had been issued letters of appointment that mistakenly referred to them as casuals. Subsequently, they were provided with renewable contracts ranging from three to twelve months, based on performance, which were automatically renewed. 13.He stated that the appellant's members remained employed by the respondents under similar fixed-term contracts that had been continuously renewed and reduced in writing. He asserted that the appellant's members were not considered casual employees as defined in section 2 of the Act, and were not treated as such. He stated that there was no verbal or written threat from the respondents regarding the termination of the appellant's members' contracts, nor was there any evidence that the respondents communicated their intention not to renew the contracts. It was noted that some contracts were renewed during the pendency of the petition. 14.He explained that since the appellant's members were not casual employees, they could not be converted into permanent and pensionable employees under section 37 of the Act. He emphasised that the courts could not alter the terms of an employment contract or create a new employment relationship that the parties did not intend. He indicated that when the appellant's members signed their employment contracts, they understood that these were fixed-term agreements that did not confer permanent employment status. Therefore, converting these contracts to permanent terms would effectively create an indefinite contract that neither party intended. He added that the appellant's members did not provide any evidence to substantiate their claims of discrimination, and the general assertion that they were engaged under different salary scales than their counterparts did not constitute discrimination. He also argued that the appellant's members failed to demonstrate any injury or violation outside the terms of their employment that would justify the prayers sought. 15.At the trial before the ELRC, the matter proceeded by way of viva voce evidence. Ephantus Mureithi Njue, the chairman of the appellant's Embu branch, relied on his witness statement and testified that they sued the respondents because their members had experienced harassment, underpayment, and poor working conditions. He claimed the members were not provided with the necessary tools for their work, and although they were employed as casual workers, none had served for less than two years without a formal contract. He added that there was a difference in salaries paid, and there was no harmonisation. 16.Martha W. Nyaga, a registered clinical officer, testified that she had worked at Mbeere district offices since 2015. She began her employment on a casual contract for three months, earning Kshs. 20,000. After her contract ended, she was not terminated; she continued working and remained on the payroll. She had a letter of recommendation signed by Dr Ndungu, the medical superintendent at Mbeere, confirming her ongoing assignments and her status on the payroll. She requested the court's assistance in obtaining better terms of service, noting the lack of leave and her being overlooked while others were employed on a permanent basis. 17.On its part, the respondent did not adduce any evidence. 18.In its determination, the trial court concluded that the petition was without merit, was misplaced, and was a complete waste of judicial resources. It held that if the appellant indeed represented a trade union with 256 of the respondents' employees, it should have raised the alleged disputes through shop-floor representatives to facilitate better negotiations regarding its members' terms. The court further found that there was no proof of the alleged discrimination of any of the membership provided, thus dismissing the petition with costs. 19.Dissatisfied with the judgment, the appellant has filed a memorandum of appeal dated 19th October 2020, outlining six grounds of appeal and seeking that the appeal be allowed as prayed. The grounds include the following: the learned Judge erred in law and fact by failing to appreciate the provisions of section 7 of the Employment Act, 2007, which require employees to be employed under contracts of service;determining that allegations of discrimination were not proven, and that the incidents were neither specified nor evidenced; and failing to recognize the respondents' breach of the appellant's members' rights to fair labor practices, as stipulated under Article 41(1), (2)(a), (b), and (c) of the Constitution; failing to consider the unrefuted evidence presented by the appellant’s witnesses; failing to fulfill the role mandated by Article 162(2) of the Constitution by stating that the appellant should have addressed the disputes through shop floor representatives; and that the learned Judge's decision resulted in a miscarriage of justice. 20.At the hearing of the appeal via the Court’s virtual platform, the matter proceeded by way of written submissions, with counsel making brief highlights of the same. On the part of the appellant, learned counsel filed submissions dated 13th November 2020 and a list of authorities dated 27th May 2020. Regarding the employment status of the appellant's members, counsel argued that it was clear that the learned Judge did not make a determination on the status of the appellant’s members' employment. Counsel contended that a contract of service is a mutual agreement between the employer and the employee, which can be either written or oral. He argued that under section 9(2) of the Act, the employer is required to ensure that a written contract of service is drawn. Consequently, the responsibility for providing the employees with written contracts fell entirely on the employer. Counsel also contended that the appellant’s members, having remained in the respondents' employment, are entitled to have their contracts adjusted to align with the provisions of the Employment Act. He asserted further that the employment status of the appellant's members is unclear and therefore not in compliance with section 10(3)(c) of the Act, which specifies that fixed-term contracts must have a clear commencement and expiration date. Counsel submitted that the learned Judge erred in failing to hold that the actions and/or omissions of the respondents were in contravention of section 7 of the Act. In support of this contention, counsel referred to Amatsi Water Services Company Limited vs. Francis Shire Chachi [2018] KECA 255 (KLR), where this Court cited the case of National Water Conservation & Pipeline Corporation vs. Jayne Kanini Mwanza, Civil Appeal No. 178 of 2014 (UR), where it was held that a fixed-term contract will terminate on the sunset date unless it is extended in terms stated in the contract. And that a court cannot rewrite the terms of a contract freely entered into between the parties. Once there is a written contract, the court will seek to give meaning to such a contract, giving ordinary meaning to its terms in determining any issue that may arise. 21.On whether the trial Judge overlooked uncontroverted evidence presented by the appellant's witnesses, counsel urged that two witnesses testified under oath and the respondents did not cross-examine these witnesses nor provide opposing evidence. As a result, their testimonies remained unchallenged and should have been deemed credible. Counsel further argued that the evidence before the court makes it clear that the appellant’s members worked continuously for extended periods, received monthly pay, and were subjected to discriminatory and inconsistent pay structures, as shown in the payroll records produced in court. 22.Learned counsel contended that the payrolls revealed pay disparities among employees performing similar duties and with comparable qualifications, which constitute a blatant violation of Articles 27 and 41 of the Constitution. In support, he relied on Linus Nganga Kiongo & 3 Others vs Town Council of Kikuyu [2012] KEHC 3881 (KLR), in which the court discussed the consequences of a party’s failure to call evidence and held that failure to adduce evidence or to cross-examine witnesses leaves the opposing evidence intact and credible. Counsel also submitted that the respondents’ absence from the hearing and failure to challenge the testimony rendered their further affidavit inadmissible and of no probative value. 23.On whether the appellant’s members were discriminated against, counsel asserted that despite performing substantially similar duties with their counterparts with permanent and pensionable terms, the appellant’s members were subjected to different remuneration and terms. He maintained that the respondents remunerated their employees differently to the detriment of the appellant’s members, whose salaries are lower and without any benefits or allowances by virtue of the initial terms of service, which have long expired. In support counsel relied on Phillip K. Tunoi & Another vs. Judicial Service Commission & Another [2015] KEHC 780 (KLR), where the court held that one could only allege discrimination if in the ordinary circumstances he has been afforded some differential treatment or different standards have been applied as against him as opposed to another person of equal status as himself based on any of the grounds stipulated under Article 27(4) of the Constitution. 24.On whether the appellant should have raised the dispute through the shop floor representatives, counsel asserted that the petition was premised on the violation of the Constitution and labour rights of the appellant’s members by the respondents. He emphasised that the relationship between the parties is that of employer and employee. According to him, the appellant, as a representative of its members, is empowered under Article 41 of the Constitution to advocate for their rights. Additionally, under Article 22(2)(d) of the Constitution, a trade union has the authority to initiate court proceedings on behalf of its members when fundamental rights and freedoms are violated. 25.Counsel further argued that shop floor representatives do not have the authority to address constitutional violations, which fall under the jurisdiction of the Employment and Labour Relations Court. He further stated that the appellant attempted to engage the respondents for conciliation at the shop floor level multiple times, but the respondents failed to attend; thus, the conciliator referred the matter to the Employment and Labour Relations Court for resolution. In support of this contention, counsel relied on Owners of the Motor Vessel “Lillian S" vs Caltex Oil (Kenya) Ltd (Civil Appeal 50 of 1989) [1989] KECA 48 (KLR), where the court addressed the question of jurisdiction and the need not to engage where there is no jurisdiction. 26.In opposing the appeal, learned counsel for the respondents filed submissions dated 13th May 2025. Regarding the contractual nature of the employment and compliance with section 7 of the Act, counsel argued that the learned Judge did not err. On the contrary, the evidence provided by both the appellant and the respondents consistently demonstrated that members of the appellant union were employed under written contracts of fixed terms, varying between three months, six months, and one year. These contracts were valid, properly executed, and conformed to the requirements outlined in sections 9 and 10 of the Act. 27.Counsel asserted that the trial Judge correctly determined that these were fixed-term contracts in line with section 10(3)(c) of the Act and in support of this proposition he referred to Krystalline Salt Limited vs. Kwekwe Mwakele & 67 Others [2017] KECA 717 (KLR), where this Court held that the Act recognizes four main types of contracts of service; contract for an unspecified period of time, for a specified period of time, for a specific task (piece work) and for casual employment. Counsel submitted that the contention that the respondents failed to comply with section 7 is thus without merit and misleading. 28.On the appellant’s contention that section 37 of the Act ought to have been applied to convert the member’s contracts into permanent and pensionable employment, counsel argued that the learned Judge correctly found that section 37 only applied to casual employment and not fixed-term contracts. Counsel placed reliance on Rashid Mazuri Ramadhan vs. Doshi & Co (Hardwares) Ltd & Another [2017] KEELRC 1562 (KLR), where this Court held that section 37 of the Act empowered a court to convert a contract of service but the claimant ought to establish first, that he/she has been engaged by the employer in question on a casual basis and second, he/she has worked for the said employer for a period aggregating to more than one month. Counsel submitted that in this instance, converting these contracts to permanent employment would have amounted to rewriting contracts for the parties. 29.On the claim of discrimination, counsel contended that the claim has no legal or evidentiary foundation and that the learned Judge properly held that proving discrimination, as defined under Article 27 of the Constitution and section 5 of the Act, requires cogent and specific evidence of unequal treatment based on prohibited grounds such as race, sex, disability, religion or other status. In support of this argument, counsel cited Kenya Power & Lighting Company Limited vs Kenya Electrical Trades and Allied Workers Union [2017] KEELRC 291 (KLR), where the court held that unequal terms are not per se discriminatory where they arise from lawful and varied contractual arrangements. 30.Counsel pointed out that the appellant's case was devoid of such evidence, as there was no proof that any of the appellant’s member received different pay from other employees with similar qualifications and job descriptions. Further, he contended that no pay slips or comparative contracts were submitted to back these claims. Counsel added that the trial court noted the petition was weak and speculative. In this aspect, the Judge's conclusion was not erroneous. Counsel contended that blanket assertions and generalised complaints cannot adequately demonstrate a violation of equality rights. 31.Regarding the alleged violation of Article 41 of the Constitution, counsel argued that the trial court correctly found that the appellant’s members were fairly remunerated and none faced the threat of dismissal or discriminatory treatment. That there was no evidence of exploitative working conditions or violation of their constitutional rights. The employment relationships were governed by consent and mutual agreement. 32.On the question of whether the court abrogated its role under Article 162(2) of the Constitution, counsel argued that the learned Judge simply noted that, as a trade union, the appellant had alternative channels for negotiation or dispute resolution before resorting to the court’s constitutional jurisdiction. This observation was factual and not indicative of a jurisdictional abrogation. The court examined the petition fully on its merits, confirming that it did not waive or decline jurisdiction. Counsel submitted that courts have emphasised the importance of utilising internal mechanisms under the Act before escalating disputes to the courts. Counsel asserted that the learned Judge rightly criticised the appellant for bypassing available industrial relations processes. 33.Lastly, regarding the alleged miscarriage of justice, counsel contended that justice is not served by granting remedies that lack a legal or factual basis, as was aptly stated in Anarita Karimi Njeru vs. The Republic [1976-80] KLR 1272, courts must be cautious in granting remedies based on emotional appeals rather than legal merit. 34.This being a first appeal, it is our duty, in addition to considering submissions by the appellants and the respondents, to analyse and re-assess the evidence on record and reach our own independent conclusions in the matter. This approach was adopted in Paramount Bank Limited vs. First National Bank Limited & 2 Others (Civil Appeal 468 of 2018) [2023] KECA 1424 (KLR), where this Court held as follows:“We start our analysis and determination by reiterating that this Court’s mandate in a first appeal under rule 31(1) of the Court of Appeal Rules, 2022 is to independently re-appraise the evidence and draw our own conclusions. (See Abok James Odera T/A A.J Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR). A first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. A first Appellate Court is the final court of fact ordinarily and therefore a litigant is entitled to a full, fair, and independent consideration of the evidence at the appellate stage. Anything less is unjust. The first appeal has to be decided on facts as well as on law. While considering the scope of section 78 of the Civil Procedure Act, a first Appellate Court can appreciate the entire evidence and come to a different conclusion.” 35.Having carefully reconsidered the record of appeal, the judgment of the High Court, the grounds of appeal and the rival submissions by counsel, the issues that arise for determination in this appeal, in our view, are the following:a.What was the nature of engagement between the appellant’s members and the 1st respondent?b.Whether the appellant’s members were subjected to unfair labour practices contrary to Article 41 of the Constitution and section 5 of the Act.c.Whether the appellant was entitled to the reliefs sought. 36.On the status of the appellant’s members, we need to interrogate what the actual status of the employees was, vis-à- vis the documents presented and the reality on the ground. The evidence on record shows that the appellant’s members were initially employed for periods ranging from 3 months to 6 months and for some 1 year. Meaning that, at the initial stage, some engagements were on short-term fixed contracts, and others were specific to the members involved, who were employed on temporary/casual terms. Evident also is that some contracts were renewed for similar periods, and thereafter members worked continuously for long periods, several years, performing duties of a permanent nature. When the contracts lapsed, they lacked clarity about the nature of their employment, leaving them in a state of anxiety and confusion. 37.Section 2 of the Act defines a casual employee as; -… a person the terms of whose engagement provide for his payment at the end of each day and who is not engaged for a longer period than twenty-four hours at a timeOn the other hand, a contract of service is defined as:… an agreement, whether oral or in writing, and whether expressed or implied, to employ or to serve as an employee for a period of time, and includes a contract of apprenticeship and indentured learnership but does not include a foreign contract of service to which Part XI of this Act applies 38.In Chemelil Sugar Company vs. Ebrahim Ochieng Otuon & 2 Others [2015] KECA 202 (KLR), this Court was of the view that employees who, on the facts of that case, were initially engaged as casual employees and worked in various capacities for periods ranging between one year and fifteen years, had their respective contracts of service converted to term contracts by operation of law under section 37 of the Employment Act. The Court stated:"Those provisions are self-explanatory. The respondents’ employment with the appellant were automatically converted into term contracts by operation of that provision."Section 37 of the Act stipulates as follows; -1.Notwithstanding any provisions of this Act, where a casual employee—a.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; orb.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 section 35(1)(c) shall apply to that contract of service.2.In calculating wages and the continuous working days under subsection (1), a casual employee shall be deemed to be entitled to one paid rest day after a continuous six days working period and such rest day or any public holiday which falls during the period under consideration shall be counted as part of continuous working days.3.An employee whose contract of service has been converted in accordance with subsection (1), and 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 under this Act had he not initially been employed as a casual employee.4.Notwithstanding any provisions of this Act, in any dispute before the Employment and Labour Relations Court on the terms and conditions of service of a casual employee, the Employment and Labour Relations Court shall have the power to vary the terms of service of the casual employee and may in so doing declare the employee to be employed on terms and conditions of service consistent with this Act.5.A casual employee who is aggrieved by the treatment of his employer under the terms and conditions of his employment may file a complaint with the labour officer and section 86 of this Act shall apply. 39.Similarly, in this case, the members whose letters stipulated that they were on casual/temporary terms, the letters were against the provision of section 37 of the Act, as they were placed on terms that do not fit the description of casual employees. The members so described have continued to work, earning monthly salaries, and as such cannot be said to have been employed as casuals. Indeed, the respondent’s chief officer negates the term, although the letter states otherwise. Pursuant to section 35(4) of the Act, they are employees who are not casual and are entitled to be employed under terms and conditions consistent with the Act. 40.Then, there are those members who had service contracts for fixed short-term periods. They too worked for long periods, some of their contracts were renewed once or from time to time. It is not clear how long, and some had worked for 20 years or so. Can the contracts be deemed in the circumstances to have been fixed service contracts? In Kenyatta University vs. Maina (Civil Appeal 261 of 2020) [2022] KECA 1201 (KLR), in a case on all fours with the situation some of the appellant’s members find themselves in, this Court stated:“The contention that the respondent had signed a fixed term contract of 3 months flies in the face of the situation obtaining between the appellant and the respondent. The signing of contracts of 3 months which were renewed on expiry is a roundabout way of avoiding the provisions of the law on casual employment.”In the trial court’s judgement in Kenyatta University vs. Maina (supra), the trial court whose finding this Court agreed with stated; -“This is the position in the instant Petition where there is no contention that the Petitioner served the Respondent continuously for months on end, which cumulatively comes to over many years. And that it is my finding that the nature of the employment relationship between the petitioner and respondent is therefore not casual or temporary but permanent and pensionable and which I hereby declare as per section 37(1) of the Employment Act 2007.” 41.In Nanyuki Water & Sewage Company Limited vs. Benson Mwiti Ntiritu & 4 Others [2018] KECA 196 (KLR), this Court held that where an employee works continuously and performs work of a permanent nature, and where the label attached by the employer is not decisive, the court must look at the substance of the relationship. 42.We find that the learned Judge fell into error by failing to interrogate the engagement between the parties and failing to consider the effect of the letters issued to some members of the appellant vis-à-vis section 37 of the Act in light of the continuous service and ignoring the respondents’ own admission that some letters described the employees as casuals. 43.We therefore find that the appellant’s members were not casual employees, nor were they on fixed contract as assumed by the respondent, who engaged them for a long period of time, extended the contracts at its whims. We firmly find that the long and continuous service entitled the appellant’s members to statutory protection. The Act was precisely put in place to protect employees who often have no voice against the ‘big brother’ from unfair and poor labour practices that dogged the public and private service for decades. 44.Article 41 of the Constitution stipulates as follows on labour relations:1.Every person has the right to fair labour practices.2.Every worker has the right—a.to fair remuneration;b.to reasonable working conditions 45.On whether there was a violation of fair labour practices under Article 41 of the Constitution, and the law which guarantees every worker the right to fair labour practices, including fair remuneration, reasonable working conditions, and generally job security. A reading of the record demonstrates a lack of clarity in the employment terms of the appellant’s members; repeated short-term engagements spanning years; unrenewed for long periods; absence of benefits such as leave, benefits, and pension; and continued uncertainty despite long service. 46.In Kenyatta University vs. Maina (supra), this Court squarely addressed the problem of keeping employees in prolonged casual or insecure arrangements, and held that: an employer cannot retain an employee under casual or rolling short-term arrangements for long periods as such conduct is a deliberate circumvention of labour protections; and it violates the right to fair labour practices under Article 41 of the Constitution. The Court firmly stated:“By being retained to what in essence was casual employment, we are further in agreement with the learned judge’s summation that the respondent’s constitutional rights were infringed. She was treated as a non-permanent employee and this is tantamount to unfair labour practices and thus denying her all the rights of a permanent employee.” 47.We agree with the finding in the case above, which encapsulates very well the situation in this case. The respondent's action cannot but be condemned in the strongest terms, particularly because the appellant’s members were in the employ of the government, which is expected to protect its citizens and to work within the law. 48.On whether there was discrimination contrary to Article 27 of the Constitution and section 5 of the Act, the appellant alleged that its members performed similar duties as permanent employees, were paid less, denied benefits and were overlooked during absorption despite experience. The appellant failed to provide evidence to support this allegation. Inasmuch as it would have been difficult to obtain such evidence from persons who appeared to be competing with them in the space, the allegations and assertions must be backed by evidence, which was lacking, making it impossible for the court to make a finding on this ground. Having said so the position in law is as stipulated in section 5 of the Act which provides that; -1.It shall be the duty of the Cabinet Secretary, labour officers and the Employment and Labour Relations Court—a.to promote equality of opportunity in employment in order to eliminate discrimination in employment; andb.to promote and guarantee equality of opportunity for a person who, is a migrant worker or a member of the family of the migrant worker, lawfully within Kenya.2.An employer shall promote equal opportunity in employment and strive to eliminate discrimination in any employment policy or practice.3.No employer shall discriminate directly or indirectly, against an employee or prospective employee or harass an employee or prospective employee—a.on grounds of race, colour, sex, language, religion, political or other opinion, nationality, ethnic or social origin, disability, pregnancy, marital status or HIV status;b.in respect of recruitment, training, promotion, terms and conditions of employment, termination of employment or other matters arising out of the employment.4.It is not discrimination to—a.take affirmative action measures consistent with the promotion of equality or the elimination of discrimination in the workplace;b.distinguish, exclude or prefer any person on the basis of an inherent requirement of a job;c.employ a citizen in accordance with the National employment policy; ord.restrict access to limited categories of employment where it is necessary in the interest of state security.5.An employer shall pay his employees equal remuneration for work of equal value.6.An employer who contravenes the provision of the section commits an offence.7.In any proceedings where a contravention of this section is alleged, the employer shall bear the burden of proving that the discrimination did not take place as alleged, and that the discriminatory act omission is not based on any of the grounds specified in this section 58.For the purposes of this section—a."employee" includes an applicant for employment;b."employer" includes an employment agency;c.an "employment policy or practice" includes any policy or practice relating to recruitment procedures, advertising and selection criteria, appointments and the appointment process, job classification and grading, remuneration, employment benefits and terms and conditions of employment, job assignments, the working environment and facilities, training and development, performance evaluation systems, promotion, transfer, demotion, termination of employment on disciplinary measures. (Emphasis added) 49.In Ol Pejeta Ranching Ltd vs. Muhoro (Civil Appeal 42 of 2015) [2017] KECA 329 (KLR), this Court held that:“Further, fairness requires that people doing similar work should receive equal pay. The principle has however extended to an analogous situation requiring that work of equal value should also receive equal pay as is claimed in the present appeal. The principle of equal pay for equal work, or work of equal value was succinctly explained in by the South African Labour Court in Louw v Golden Arrow Bus Services (Pty) Limited [1999] ZALC 166 as follows;'...it is not an unfair labour practice to pay different wages for equal work or for work of equal value. It is however an unfair labour practice to pay different wages for equal work or work of equal value if the reason or motive, being the cause for so doing, is direct or indirect discrimination on arbitrary grounds or the listed groundse.g. race or ethnic origin.’In claims of this nature, where the claimant invokes the principle of equal pay for equal work the claimant must establish that the unequal pay is caused by the employer discriminating on unlawful grounds. It was observed in Louw v Golden Arrow Bus Services (Pty) Ltd (supra) that discrimination on a particular 'ground' means that the ground is the reason for the unequal treatment complained of by the claimant. As discussed by the writer, Adolph A. Landman in his article The Anatomy of Disputes about Equal Pay for Equal Work,“The mere existence of disparate treatment of people of, for example, different races is not discrimination on the ground of race, unless the difference in race is the reason for the disparate treatment. Put differently, it must be shown that the difference in salaries is because of sex, gender, race, and so on.” (Emphasis added) 50.The appellant’s members did not provide documentary evidence of the alleged differential treatment. Though, as if in admission, the respondents in the replying affidavit to the petition attempted to explain the rationale behind the members’ disquiet, namely that they had been hired by a different dispensation from their own. Article 41 of the Constitution and section 5 of the Act are clear on the law's expectations in employer-employee relations: fair labour practices that encompass equal treatment, equal pay for equal work, equal benefits, etc. Further, the onus of disproving the allegation or perceived concern of discrimination lies squarely with the respondent who failed to appear for the hearing of the case as stipulated in section 5(6) of the Act which states that in any proceedings where a contravention of this section is alleged, the employer shall bear the burden of proving that the discrimination did not take place as alleged, and that the discriminatory act or omission is not based on any of the grounds specified in section 5 of the Act. 51.In Mohamed Abdi Mahamud vs. Ahmed Abdullahi Mohamad & 3 Others [2018] KECA 677 (KLR), this Court held that:“As to the consequences of such deliberate and unexplained absenteeism on the part of the appellant, we find persuasive the judgment of Lightman J of the English High Court of Justice in RAJA vs. VAN HOOGSTRATEN [2005] EWHC 2990(Ch). After finding that the defendant had given no reason for not attending the trial and that there was no credible justification other than “a well-founded concern that his account would not survive oral examination,” the Judge inferred that he had run scared of cross-examination and, in the circumstances,“(i) adverse inferences may be drawn from his failure to give evidence on the issues on which he might reasonably be expected to answer the case against him (ii) statements in [his] witness statements in issue in the case which ought reasonably to be tested may carry little or no weight (iii) the unchallenged evidence against him may without more be accepted so long as it is credible …”That reasoning is in consonance with the Privy Council decision in GIBBS vs. REA [1998] AC 786 to the effect that when defendants elect to give no evidence such a choice “carries the risk that should it transpire that there was some evidence tending to establish the plaintiff’s case, albeit slender evidence, their silence in circumstances in which they would be expected to answer might convert that evidence into proof.” 52.We therefore fault the Judge for not considering the issue of discrimination raised, and further find that he fell in error in his finding that the suit was hollow, misplaced and a waste of time and that grievances, if any, ought to have been referred through the shop floor representative. The petition before the court cited a violation of the Constitution, which squarely falls within the jurisdiction of the ELRC and could not have been handled by a union representative. Secondly the Act mandates the ELRC to investigate and adjudicate on the issues raised by the appellant. See section 5(1) of the Act. 53.Having found that the employment status of the appellant’s members was mischaracterized; violation of Article 41, and the Act, we are satisfied that the appeal is meritorious. 54.We accordingly allow the appeal. The judgment of the ELRC dated 24th June 2020, is set aside and in its place we enter judgement in favour of the appellant’s members.i.We declare that:a.the respondents violated the appellant members’ rights to fair labour practices;b.the employment relationship between the appellant’s members and respondents is not casual/temporary or based on any contract of service but is permanent and pensionable.ii.We direct and order the respondents to regularize the appellant’s members’ employment terms and conditions of service to accord with fair labour practices in accordance with the Constitution and the Employment Act forthwith.iii.Costs of petition and this appeal are awarded to the appellant.Orders accordingly. DATED AND DELIVERED AT NYERI THIS 24TH DAY OF JULY, 2026.S. ole KANTAIJUDGE OF APPEAL.................................J. LESIITJUDGE OF APPEAL.................................ALI-ARONIJUDGE OF APPEALI certify that this is a true copy of the original.DEPUTY REGISTRAR.