Samwel Okinda Aponga & another v Match Master Limited [2015] KEELRC 1624 (KLR)
The bottom line
#Kenya's Employment Court ruled that long-serving 'casual' workers automatically become permanent employees entitled to notice pay, leave and service pay.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimants were casual workers
The Claimants were not casuals; having worked continuously for years and paid weekly, their employment was converted to monthly contracts under section 37(1) of the Employment Act.
The court applied the statutory definition of a casual employee as one paid at the end of each day and engaged for not more than 24 hours at a time. Both Claimants' evidence and RW1's testimony showed continuous work over many years at daily rates but weekly payment. Section 37(1) deems such casuals to hold monthly contracts once service reaches one month's aggregate, bringing the contract within section 35(1)(c).
Entitlement to terminal benefits: notice pay, leave, service pay and underpayment
Upon conversion to monthly status, the Claimants were entitled to one month's notice, 21 days annual leave per year, and service pay at 15 days' salary per year worked, save for periods of NSSF registration; the 2nd Claimant's underpayment claim was allowed unchallenged.
Conversion under section 37(1) imports the Basic Minimum Conditions of Employment under Part V, including section 28(1) annual leave of 21 days. Under section 35(5) service pay accrues on termination by notice, but section 35(6) excludes NSSF members. The 1st Claimant was never registered with NSSF; the 2nd Claimant only from 2004, hence gratuity for four years. The Respondent offered no defence to leave and underpayment claims.
Legal principles established
#- A casual employee who works continuously for the equivalent of one month or more is deemed to have a monthly contract and acquires the statutory minimum benefits under the Employment Act.
- Employees deemed to be on monthly contracts under section 37(1) are entitled to one month's notice and service pay under section 35(5), unless registered with NSSF.
Court orders
#- 1.Award to the 1st Claimant: one month salary in lieu of notice Ksh.7,710.00; 21 days annual leave for 10 years Ksh.53,970.00; 15 days service pay for 10 completed years Kshs.38,550.00; total Kshs.100,230.00
- 2.Award to the 2nd Claimant: one month salary in lieu of notice Ksh.7,710.00; 21 days salary in lieu of annual leave for 7 years and 11 months Ksh.42,726.00; underpayment for 2000 to 2008 Kshs.23,983.00; service gratuity at 15 days salary for 4 years Ksh.15,420.00; total Ksh.104,359.00
- 3.Awards payable with interest at court rates from date of filing the suit till payment in full
- 4.Respondent to pay the costs of the suit
- Jurisdiction invoked
- Transfer from Milimani Resident Magistrate's Court under the Industrial Court's employment jurisdiction; Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samwel Okinda Aponga & another v Match Master Limited [2015] KEELRC 1624 (KLR)", Case Analysis (2015). Milimani Resident Magistrate's Court Joint Plaint dated 13th July 2009, transferred and filed as Memorandum of Claim on 2nd June 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1624/eng@2015-08-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.