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ELRCPartially AllowedClaim originally filed at Nyeri E&LRC on 8th September 2015, transferred to Nairobi (number not stated)· [2021] KEELRC 744 (KLR)

Jerry Ouma Osoro v Bidco Oil Refineries [2021] KEELRC 744 (KLR)

Employment and Labour Relations Court
15 October 2021
1,867 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled a worker who admitted being a casual labourer could not claim full employee benefits — he walked away freely and got only a service certificate.

What this practically means

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Executive summary

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The Claimant sued the Respondent seeking notice pay, salary for days worked in August 2012, accrued house allowance and annual leave, services pay, overtime, compensation for loss of employment, baggage allowance, public holidays and rest days pay, and a Certificate of Service, claiming he was employed from 1st July 2011 as a Packer earning Kshs. 26,370 monthly and terminated without notice or reason on 12th August 2014. The Respondent denied the claims, contending the Claimant was a casual labourer paid Kshs. 432 per day inclusive of housing, who worked intermittently, was free to work for other employers, and simply failed to return after his shift of 7th August 2014. The court framed three issues: the nature of the employment, whether there was a termination, and whether the prayers were merited. On the evidence, including the Claimant's own testimony that he was casual, worked for other employers such as Kenblest Limited, and his signed Undertaking describing himself as 'a casual... hired as and when required getting paid on daily basis', the court held the Claimant was a casual employee. Section 37 of the Employment Act could not be invoked to convert the contract into regular employment. Consequently there was no termination: the Claimant walked out voluntarily, and casual employment permitted the parties to disengage at the end of each day. All monetary prayers were declined for want of foundation. The court ordered only that the Respondent issue a Certificate of Service under Section 51 of the Employment Act, and made no order on costs. Judgment dated 15th October 2021 at Nairobi, delivered electronically under COVID-19 guidelines.

Key legal issues

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01

Whether the Claimant was a regular or casual employee

Holding

He was a casual employee; his own evidence and the signed Undertaking confirmed casual status, so Section 37 of the Employment Act could not be invoked to convert the contract.

Reasoning

The Claimant stated in evidence in chief and cross-examination that he was casual, worked for other employers including Kenblest Limited, was not paid for days not worked, and worked as few as 3 or 4 days in some months. His signed Undertaking described himself as 'a casual and hired... as and when required getting paid on daily basis'. Given this, the court had no basis to deem the contract converted into regular employment.

p. 3
02

Whether the Respondent terminated the Claimant's contract

Holding

No termination occurred; the Claimant walked out of the casual relationship after his shift of 7th August 2014 and never returned.

Reasoning

Having found casual employment, the court held the Respondent had no obligation to recall the Claimant, enquire into his whereabouts, or subject him to disciplinary process. Casual employment permitted either party to disengage at the end of the day. The Claimant left of his own accord, as he was entitled to do.

p. 3
03

Whether the Claimant merits the prayers sought

Holding

All monetary prayers were declined for want of evidential foundation; only the Certificate of Service under Section 51 of the Employment Act was awarded.

Reasoning

Each head of claim failed: he was paid for days worked; housing was consolidated in the daily wage; there was no continuity justifying leave pay; no evidence supported services pay, overtime, compensation, baggage allowance, or public holidays and rest days. Only the statutory entitlement to a Certificate of Service under Section 51 of the Employment Act was upheld.

p. 3

Legal principles established

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  • A court cannot convert casual employment into regular employment under Section 37 of the Employment Act where the claimant's own evidence establishes casual status, freedom to work for other employers, and engagement on an intermittent basis.
  • In casual employment, the parties may disengage at the end of the day without notice, reason or disciplinary process.

Court orders

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  1. 1.The Claim is declined, except that the Respondent shall release to the Claimant his Certificate of Service forthwith
  2. 2.No order on the costs

Authorities

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Legislation

  • Employment ActSection 37
  • Employment ActSection 51
  • The Regulation of Wages [Agricultural Industry] [Amendment] Order, 2013
  • Minimum Wage Order
Jurisdiction invoked
Employment and Labour Relations Court original jurisdiction under the Employment and Labour Relations Court Act (not expressly cited in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Jerry Ouma Osoro v Bidco Oil Refineries [2021] KEELRC 744 (KLR)", Case Analysis (2021). Claim originally filed at Nyeri E&LRC on 8th September 2015, transferred to Nairobi (number not stated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/744/eng@2021-10-15

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.