Rashid Mazuri Ramadhani & 10 others v Doshi & Company (Hardware) Limited & another [2018] KECA 427 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that casual workers must prove continuous work of over one month to convert their jobs into permanent contracts.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appellants' casual employment was converted into a regular term contract by dint of the provisions of Section 37 of the Employment Act
- 2.Whether the appellants' casual employment was unlawfully/wrongfully terminated or whether they deserted duty
- 3.Whether the appellants were entitled to the reliefs sought (notice pay, accrued leave, service pay, compensation and certificate of service)
Key legal issues
#Whether intermittent casual employment aggregating to the equivalent of one month converts to a term contract under Section 37 of the Employment Act
No. The appellants worked only two days a week on rotation depending on availability of materials; their casual employment never converted to a regular term contract within the meaning of Section 37.
Section 37 requires the casual employee to work for a period or number of continuous working days amounting in the aggregate to the equivalent of not less than one month. CW1's own evidence was that the appellants worked two days per week as materials allowed, never continuously for a whole month. The respondents produced unchallenged petty cash analysis sheets showing daily payment for two days a week. The trial Judge's finding was therefore amply supported and there was no basis for interference on appeal.
Whether the appellants were wrongfully/unfairly terminated or deserted duty
The appellants deserted work after declining term contracts; a daily-wage casual contract was terminable without notice under Section 35(1)(a), so no claim for wrongful termination arose.
The respondents' evidence that the appellants deserted work on 2nd August 2015 after being offered term contracts, communicated to the county labour office, was unchallenged. The court observed that the appellants likely preferred pursuing a wrongful termination claim for damages rather than accept term contracts. Since their daily-wage contracts were terminable at the close of any day without notice, and conversion to term contracts never occurred, the dismissal claim was unfounded.
Legal principles established
#- Before a court can convert a casual contract of service under Section 37 of the Employment Act, the claimant must establish that they were engaged on a casual basis and that they have worked for the employer for a period aggregating to more than one month.
- On a first appeal, the appellate court must re-evaluate the evidence and determine the matter afresh, but will not lightly differ with the trial court's findings of fact unless based on no evidence, a misapprehension of the evidence, or wrong principles.
Court orders
#- 1.The appeal is dismissed
- 2.Each party to bear their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment & Labour Relations Court at Mombasa
- E&LRCC No. 96 of 2016 (as consolidated with E&LRCC Nos. 98, 99, 100, 101, 102, 105, 109, 110, 111 and 114 of 2016)
- Jurisdiction invoked
- First appeal to the Court of Appeal under the applicable appellate framework; the judgment does not cite the specific provision.
- Consolidated with
- E&LRCC No. 98 of 2016, E&LRCC No. 99 of 2016, E&LRCC No. 100 of 2016, E&LRCC No. 101 of 2016, E&LRCC No. 102 of 2016, E&LRCC No. 105 of 2016, E&LRCC No. 109 of 2016, E&LRCC No. 110 of 2016, E&LRCC No. 111 of 2016, E&LRCC No. 114 of 2016
Relief refused
#Conversion of casual employment to term contract and associated reliefs of notice pay, leave, service pay, compensation and certificate of service
The appellants failed to prove on a balance of probabilities that they worked continuously for a period aggregating to more than one month as required by Section 37 of the Employment Act
Relief for wrongful or unfair termination
The claim was unfounded as the casual contract was terminable without notice under Section 35(1)(a) of the Employment Act
Costs
Each party to bear their own costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Our reading of Section 37 of the Employment Act reveals that before the court can convert a contract of service thereunder, 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.
Should we however, be satisfied that the conclusions of the trial judge are based on no evidence or on a misapprehension of the evidence on record or that the learned judge demonstrably acted on wrong principles, we are enjoined to interfere with those conclusions.
For the aforesaid reasons, we see no reason to interfere with the order made by the Judge dismissing the claim with no order as to costs. Similarly this appeal lacks merit and we order it dismissed. This being an employment dispute, we are reluctant to make an order for costs, we direct each party to bear their own costs.
Where the contract is to pay wages daily, a contract terminable by either party at the close of any day without notice
Issues in the judgment
#The judgment cites Krystalline Salt twice with differing numbers of interested parties (7 Others vs 67 others) and in one instance attributes its citation to counsel and in another treats it as this Court's decision followed on the Section 37 test
Appellate duty passage quoting Mary Njoki encloses the quote of Watt v Thomas within the quotation of Mary Njoki, blurring attribution between the court's citation of the two cases
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rashid Mazuri Ramadhani & 10 others v Doshi & Company (Hardware) Limited & another [2018] KECA 427 (KLR)", Case Analysis (2018). Civil Appeal No 43 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/427/eng@2018-06-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.