A short-term contract can say temporary in every clause. The Court of Appeal has now confirmed that years of unbroken service can say otherwise, and that when the paperwork and the practice disagree, the practice tends to win.

Joshua Moraira · Munyeri Advocates · 29 September 2026 · 20 min read

Kenya County Government Workers’ Union v Embu County Government & another, Civil Appeal No. 178 of 2020 [2026] KECA 1481 (KLR), Court of Appeal at Nyeri, before Ole Kantai, Lesit and Ali-Aroni, JJA, delivered 24 July 2026.

§1  Temporary on paper, continuous in practice

A short-term contract may begin as a perfectly ordinary temporary arrangement. There is nothing unusual about that; sometimes the work really is temporary, and the contract simply says so. But time has a way of testing the truth of those words. The contract expires, the worker remains, another term follows, and the work continues with the same quiet permanence it had before the contract expired. In Kenya County Government Workers’ Union v Embu County Government & another, some workers had lived in that uncertainty for years, some for close to two decades, while performing work that continued to be required of them. By the time the dispute reached the Court of Appeal, the interesting question was no longer how their employment had begun. It was what all those years had done to it.

Many of the workers had first been engaged through the Ministry of Health and hospital management boards, before devolution placed the health function under the Embu County Government. The County inherited the workforce, and with it, employment arrangements that did not fit into any single category. Some workers had letters referring to them as casual or temporary; others had contracts running for three months, six months or a year. The County would later say that some of those references to casual employment were simply mistakes, and that the workers were, in truth, serving under renewable fixed-term contracts.

The Union took that disagreement to the Employment and Labour Relations Court, asking among other things that the workers be absorbed into permanent and pensionable employment and that the differences in their pay and treatment be declared unlawful. The petition did not survive there: the ELRC dismissed it, found no proof of discrimination, and, in terms the Court of Appeal would later revisit, described the case as misplaced and a waste of judicial resources, one better handled by shop-floor representatives. On appeal, the judges returned to something more basic that had been left largely unaddressed below: before one could decide what rights flowed from these relationships, one had to work out what the relationships had become. The letters said one thing while years of continuous service suggested another.

§2  What time does to a contract

Section 2 of the Employment Act is quite specific about casual employment: a casual employee is paid at the end of each day and is engaged for no longer than twenty-four hours at a time. That description makes perfect sense for work hired by the day. Stretch it over months, and the definition stops fitting; over years, it no longer describes the reality at all. Section 37 deals with precisely that possibility. Once a casual employee has worked continuously for the equivalent of at least one month, or is doing work that cannot reasonably be completed within three months, the law treats the relationship differently. Wages should be deemed monthly, the notice protections under section 35 of the Act apply (seven days’ termination notice for employees paid at intervals of less than a month, twenty-eight days for monthly-paid employees), and continued service attracts the terms and conditions available under the Act. The law does not wait for the employer to issue a new letter before those consequences arise.

Some of the workers had appointment letters that expressly described them as casual or temporary. Yet they were not turning up for a day’s work and collecting a day’s wage. They were paid monthly, remained in service continuously, and in some cases had done so for years. The Court of Appeal found that these arrangements could not be reconciled with the definition of casual employment under section 2. Section 37 had already converted their status in law, regardless of what the appointment letters said. Their continued service brought them within the protections of the Employment Act regardless of what an original appointment letter continued to call them.

But section 37 says something rather specific about what happens next. It converts casual employment into a contract governed by monthly wages and the statutory protections that follow; it does not expressly say that the employee becomes permanent and pensionable. That language appears later, in the remedy the Court eventually granted, not in the section itself. And section 37 could not answer the whole case in any event, since some of the workers had not been engaged as casual employees at all.

§3  The contract that keeps ending, and never ends

Their contracts came with expiry dates. Ordinarily, that should make the position straightforward: the parties choose a period, work within it, and when the date arrives, the contract ends. Kenyan courts have generally respected that bargain. An employee does not become permanent merely because a fixed-term contract has been renewed before, or because another renewal would have been desirable. Otherwise, the expiry date would mean very little.

The difficulty in the Embu case was that expiry did not always look much like an ending. Some contracts were renewed again and again. Some workers stayed at their posts after the stated term had run out. For others, three-month, six-month and one-year contracts accumulated into years of service. Read separately, every contract had a beginning and an end. Read across the years, the employment did not.

There is no rule that every renewed fixed-term contract slowly becomes permanent. In Amatsi Water Services Company Limited v Francis Shire Chachi [2018] KECA 255 (KLR), the Court of Appeal affirmed the ordinary position: a fixed-term contract comes to an end on its agreed date unless it is extended in the manner the contract itself contemplates. That rule is straightforward where the contract ends and so does the employment. The Embu case was more complex, because the contracts kept ending, but the work did not.

The Court found a closer parallel in Kenyatta University v Maina, Civil Appeal No. 261 of 2020 [2022] KECA 1201 (KLR). The employee there had worked for the University for years before being placed on successive three-month contracts. When the University argued that those contracts had to be respected as fixed terms, the Court looked past the three months written on each document and into the long-standing employment relationship behind them. It treated the repeated use of those contracts as a way of avoiding the law governing casual employment, and upheld a finding that the relationship had become permanent and pensionable. Embu borrowed heavily from that reasoning. The issue was never the legality of using fixed-term contracts as such, which is not in dispute. Rather, it was the point at which their repeated renewal stops reflecting a genuine temporal limitation and becomes instead a mechanism for sustaining an ongoing employment relationship. The harder question is how many times the same employment can be made to end before the ending itself stops describing what is actually happening.

§4  Permanent and pensionable, but by what route

The Court eventually declared that the workers’ employment was permanent and pensionable, and directed the County to regularise their terms accordingly. That conclusion sits comfortably with the history the Court had just described: years of service, repeated renewals, work continuing beyond expiry, and employees left in a state of uncertainty that was difficult to reconcile with the reality of their employment. The statutory route to that particular status is less obvious.

Section 37 certainly prevents an employer from keeping a worker casual indefinitely once the conditions for conversion have been met. What it expressly does is bring the employee within a monthly contract of service and the protections of the Employment Act. It does not use the words permanent and pensionable. Nanyuki Water & Sewage Company Limited v Benson Mwiti Ntiritu & 4 others [2018] KECA 196 (KLR) illustrates the difference. The Court there accepted that prolonged casual employment had been converted by operation of section 37, but treated the consequences of that conversion within the statutory framework, rather than assuming that every converted employee had, for that reason alone, acquired permanent and pensionable status. In Embu, the Court moved from the workers’ long and continuous service to a considerably more definite conclusion about the character of their employment.

That conclusion becomes even more interesting because the employer was a County Government. Permanent appointment in the county public service is not merely a private arrangement between an employer and an employee; it is governed by Article 235 of the Constitution of Kenya, 2010 and the County Governments Act, 2012, particularly sections 57, 59 and 65, which establish the County Public Service Board and vest it with the mandate over establishment and abolition of offices, recruitment, appointment, confirmation and disciplinary control. It sits further within the broader framework of public service regulations on qualifications, remuneration structures and pensionable service under the Pensions Act and related statutory schemes. The workers may well have deserved regularisation after years of service under arrangements the Court considered unlawful. But once the remedy became permanent and pensionable, the case also began touching an institutional question the judgment did not spend much time unpacking: how does a court cure prolonged employment insecurity without overlooking the legal machinery through which permanent public appointments are ordinarily made?

§5  Job insecurity as an unfair labour practice

Article 41 took the case beyond the question of what the workers’ contracts had become. Their complaint was also about the years spent inside those arrangements: short engagements renewed over and over, periods when contracts had technically expired although the work continued, and employment that remained uncertain long after the workers themselves had become anything but temporary. The Court also noted the absence of benefits such as leave and pension.

Section 37 could explain why some of the workers could no longer be treated as casual. Article 41 asked a broader question: could an employer continue to enjoy the certainty of an employee’s labour while preserving uncertainty as a condition of that employee’s work? The Court thought the answer lay partly in job security, which it treated alongside fair remuneration and reasonable working conditions as part of the protection offered by fair labour practices. The workers therefore did not have to wait for a final refusal to renew their contracts before the law became concerned with how they had been employed in the years before it. Kenyatta University v Maina had already held that keeping an employee under prolonged casual or rolling short-term arrangements could become a deliberate way of avoiding labour protections, and therefore offend Article 41. Looked at separately, there may have been nothing unlawful about a three-month contract, or even the one that followed it. The problem appears when those contracts are laid beside one another and the same employee remains at the same workplace, doing work that survives every expiry date written into the paperwork.

The Embu judgment goes further than a simple argument for regularisation. The unfairness did not sit inside any one contract; it accumulated through the practice created by all of them. The County had continuity whenever it needed the workers’ labour, while the workers remained temporary when continuity would have carried greater security and benefits with it. Article 41 allowed the Court to look at that arrangement as a whole. None of this makes fixed-term employment constitutionally suspect merely because it is renewed. Temporary work remains temporary where there is a genuine reason for it to be so. Embu becomes harder to explain on that basis, because the work continued, the employees continued doing it, and the insecurity continued with them. After enough years, temporary was saying less about the work than about the conditions under which the workers were being kept.

§6  Equal work, unequal pay: who must explain the difference

The Union also said its members were doing work comparable to employees on permanent and pensionable terms while earning less and missing out on benefits attached to those positions. At this point, the workers’ case became harder to sustain. The Court itself acknowledged that there was little documentary evidence setting out the alleged differences in pay, or identifying the employees against whom the comparison was being made. A claim of discrimination cannot rest on the fact that two employees earn differently; there has to be something about the difference that the law recognises as discriminatory.

That was the difficulty the Court of Appeal had confronted in Ol Pejeta Ranching Limited v David Wanjau Muhoro, Civil Appeal No. 42 of 2015 [2017] KECA 329 (KLR). Equal pay for work of equal value does not mean that every difference in remuneration is unlawful. Experience, qualifications, responsibility and other legitimate considerations may explain why employees doing apparently similar work are paid differently. What the law asks is whether the difference can be traced to a prohibited or otherwise arbitrary ground. The Embu workers therefore still had some distance to travel between saying “we do the same work for less” and establishing discrimination in the legal sense.

But most of the evidence capable of explaining that difference was never likely to be in their hands. Payroll records, job grades, appointment terms and benefit structures belonged to the County. Section 5(6) of the Employment Act recognises that imbalance by requiring an employer, once discrimination has been sufficiently raised, to disprove it. The County had filed an affidavit suggesting that the workers’ different treatment arose because they had been hired under a different dispensation, but its witnesses did not attend the hearing to explain that position or produce the records behind it. The Court was therefore left with an allegation that was imperfectly proved, and an employer holding much of the missing evidence but choosing not to speak. Drawing on the rule that a court may draw an adverse inference where a party who would ordinarily be expected to answer evidence chooses not to do so, it held that the County had failed to discharge the burden placed on it. The workers’ evidence was therefore left largely unchallenged.

Yet the reasoning leaves a difficult evidential question: how much must an employee first show before section 5(6) begins to operate? The Supreme Court addressed that threshold in Gichuru v Package Insurance Brokers Ltd, Petition No. 36 of 2019 [2021] KESC 12 (KLR). The burden does not shift merely because discrimination has been alleged. The claimant must first lay a factual basis from which discrimination may reasonably be inferred; only then is the employer called upon to explain the difference. In Embu, the Court acknowledged the thinness of the workers’ documentary evidence but nevertheless found the County’s failure to testify decisive. It is possible to understand why: the employer controlled much of the material that could have settled the question. Still, access to evidence and the burden of proof are not quite the same thing, and the judgment leaves some uncertainty about exactly what evidence carried the Union across that first threshold.

§7  Where the shop floor could not resolve the question

By then, the Union said it had already tried the shop floor. It had sought conciliation more than once, the respondents had failed to attend, and the conciliator eventually referred the dispute to the ELRC. Yet the trial court dismissed the petition as hollow and misplaced, and thought the grievances should have gone back to shop-floor representatives. The Court of Appeal rejected that view. The petition alleged violations of Articles 27 (equality and freedom from discrimination), 41 (fair labour practices) and 47 (fair administrative action) of the Constitution, which fell squarely within the jurisdiction of the ELRC under Article 162(2)(a) as read with section 12 of the Employment and Labour Relations Court Act, while section 5 of the Employment Act expressly gives the Court a role in investigating and adjudicating discrimination claims.

Not every disagreement at work begins in court. Kenya’s labour-law framework deliberately leaves considerable room for collective bargaining, workplace engagement and conciliation. Article 41 protects collective bargaining, while sections 62 to 69 of the Labour Relations Act, 2007 establish a mandatory conciliation framework: a trade dispute must first be reported under section 62, a conciliator appointed under section 65, and the matter subjected to conciliation within the statutory period before, if unresolved, it may be referred to the Employment and Labour Relations Court under section 69.

The Constitution, particularly Articles 22(2)(a) and 258(2)(c) on the enforcement of the Bill of Rights and public interest standing, read together with Article 41 on fair labour practices and Article 27 on equality and non-discrimination, also permitted the Union to approach the Court on behalf of its members where fundamental rights were said to have been violated. Sending the dispute back to the shop floor after conciliation had already failed would have returned the workers to the very place from which the litigation began.

§8  What Embu leaves unresolved

Embu makes clear that an employer cannot rely indefinitely on the language of temporariness where the employment relationship has long ceased to be temporary in practice. Section 37 may displace casual status once its statutory thresholds are crossed. Repeated fixed-term contracts may also be examined as part of one continuing employment relationship, where renewal, continued service and the nature of the work suggest that the short terms are being used to preserve insecurity rather than to meet a genuine temporary need. Article 41 then allows the court to ask a further question: whether that insecurity has itself become an unfair labour practice.

The judgment leaves the harder boundaries for another day. It does not tell us how many renewals, or how many years of service, are enough to make a genuine fixed-term arrangement legally suspect. Nor does section 37, on its face, explain why conversion from casual employment must necessarily result in permanent and pensionable status rather than simply a monthly contract governed by the Act. In county public service, that remedy must also be read alongside the statutory framework governing appointments and the functions of the County Public Service Board, a framework the judgment touches without fully reconciling. The discrimination finding raises its own unresolved question about how much evidence an employee must first produce before the employer is required to explain differences in pay and benefits.

Embu therefore leaves Kenyan employment law with both a correction and a set of unfinished questions. An expiry date cannot always be read in isolation from what happens after it. The longer the work, the employee and the need for both continue, the harder it becomes to understand the relationship from the contract alone, and the more an employer’s paperwork should be expected to answer to the practice it describes, rather than the other way round.

Bottom line

The Court of Appeal has confirmed what long-serving contract and casual workers have long suspected: an appointment letter is not the last word on what an employment relationship has become. Years of continuous service, repeated renewals and work that survives every expiry date can convert casual status by operation of law, and can turn the resulting insecurity itself into an unfair labour practice. What the judgment does not supply is a bright line. Employers relying on rolling short-term contracts should treat this case as a signal to review how long those arrangements have actually run, not as confirmation that the next renewal is safe simply because a contract, on paper, still says temporary.

Sources and further reading: Kenya County Government Workers’ Union v Embu County Government & another, Civil Appeal No. 178 of 2020 [2026] KECA 1481 (KLR); the Employment Act, 2007 via Kenya Law; Amatsi Water Services Company Limited v Chachi [2018] KECA 255 (KLR); Kenyatta University v Maina [2022] KECA 1201 (KLR); Nanyuki Water & Sewage Company Limited v Ntiritu & 4 others [2018] KECA 196 (KLR); Ol Pejeta Ranching Limited v Muhoro [2017] KECA 329 (KLR); and Gichuru v Package Insurance Brokers Ltd [2021] KESC 12 (KLR).

This article is provided for general information only and does not constitute legal advice. It reflects the author’s own analysis and opinion on a recent decision of the Court of Appeal, and readers with a specific employment law question should seek advice on their particular facts.