I have continued working for this company without a written contract since the previous one expired in March 2026. The employer has not clarified whether we remain employees, yet we continue to perform our duties and receive irregular stipend ‑like payments. Under Kenyan employment law and policy, how is such a situation classified, and what legal implications arise from it?
Employment, whether on a casual or permanent arrangement, is never abstract. There have been incidents within the employment sector, such as what you have described, that informed the inclusion of Article 41 of the Constitution. Work cannot be delivered without people; even where machinery and artificial intelligence are facilitative, a human being must somehow be in the mix for effective instruction and initiating. Article 41 speaks to the ethical relationship between the employer and the employee, their professional conduct and the dignity that should be provided by the conditions and environment in which the two parties mutually co-exist.
Every person has and should enjoy the right to fair labour practices, which must include fair remuneration, reasonable working conditions, and predictability, despite the unpredictable nature of businesses, geopolitical dynamics and policy fluctuations. Ordinarily, the expiry of a fixed term brings to an end the employer-employee relationship by effluxion of time, as demanded by Section 10 of the Employment Act. This was recognised and affirmed in Registered Trustees of PCEA v. Gathoni Ngotho-Kariuki and Transparency International v. Danile Ndung’u.
Employment law deals with administrative issues within a bigger relationship that leads to rewards, either as remuneration on the one hand, and business growth on the other for the investor (employer). One cannot address any labour-related situation without referencing Article 47 of the Constitution on every individual’s right to fair administrative action.
Mischievous actions have also spurred magistrates and judges, alongside litigants, to think and apply law more progressively. They have established that employment is not defined only by written instruments: it is equally shaped by conduct. If an employer continues to assign duties, accepts the employee’s labour, and provides payment—whether regular or irregular—after the formal contract has lapsed, the courts often interpret this as evidence of an implied or continuing employment relationship.
The principle of inferred responsibility kicks in, and contract by conduct is activated. Such legal reasoning was applied in Lumuti v. Kenya Civil Aviation Authority, where the court stated that continued engagement beyond contract creates an indefinite relationship that attracts statutory protections.
The scenario painted by your question points to the doctrine of legitimate expectations. A-G of Hong Kong v. Ng Yuen Shiu [1983] 2 AC 629 outlined four critical factors: first, the representation or practice must be clear, unambiguous and unqualified; second, it must have been made by someone with actual or ostensible authority; thirdly, the claimant must have relied upon it (though detrimental reliance is not always necessary); and fourthly, there must be no overriding public interest justifying the frustration of the expectation. Coming to work every day, while being pointed to responsibilities in addition to the remuneration paid, creates the perfect model on which legitimate expectation can be claimed.
Kenyan jurisprudence further rejects attempts to “casualise” workers through irregular payments or unclear arrangements when the reality shows long‑term service. In Kenya County Government Workers Union v Embu County Government, the Court of Appeal held that sustained engagement under rolling or ambiguous terms amounts to regular employment, triggering rights under Section 37 of the Employment Act and Article 41. Even where workers lack a current written contract, the employer’s conduct may create legitimate expectation of continued employment, a principle recognised in Keen Kleeners Ltd v Kenya Plantation & Agricultural Workers Union and reinforced in Mweni v Child Welfare Society of Kenya.
When continued work after contract lapse is established, several rights arise. Employees are entitled to fair labour practices under Article 41, including clarity of status and fair remuneration. Section 18 of the Employment Act requires timely payment, and Section 10 obligates employers to provide written terms once an employment relationship exists. If the employer wishes to end the relationship, they must comply with Sections 41 and 45, ensuring valid reasons and fair procedure. Continued service also attracts statutory benefits such as leave, NSSF, NHIF, notice pay, and, where applicable, severance.
In scenarios like yours—where the contract ended in March 2026 but work continued, duties were still performed, and stipends were still paid—the courts would likely treat you as an employee under an implied or indefinite contract. You may legitimately seek clarification of your employment status, written terms of engagement, regular payment, and full compliance with fair termination procedures should the employer intend to end the relationship.
There is an opportunity to hold a conversation with your employer’s human resources department for clarity. Should this fail, alternative justice systems and approaches are available, which may solve the problem without reducing the significance of the existing relationship.
On the other hand, you may approach the court with the clear intention of winning rights, even if it strains the employer-employee ties currently being enjoyed.
