Sakei Kidenga v Mattan Construction Limited [2021] KEELRC 2360 (KLR)
The bottom line
#A Kenyan court ruled that casual workers who serve over a month gain full employment rights, and employers must give notice before redundancy termination.
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 claimant was a casual employee or an employee protected under section 37 of the Employment Act, 2007
- 2.What was the duration of the claimant's continuous employment
- 3.Whether the termination of employment due to lack of work (redundancy) was lawful and followed due process
- 4.Which terminal dues (notice pay, salary for January 2016, leave pay, house allowance, service pay, compensation for unfair termination) are due
Key legal issues
#Conversion of casual employment to term contract under section 37 of the Employment Act
The claimant, having worked for over one month and remained in service for 3 months and 24 days, was converted to an employee with benefits under the Act and is protected in law
Section 37(1) of the Employment Act, 2007 deems a casual employee who works for a period equivalent to not less than one month to be employed on monthly wages, attracting section 35(1)(c). The claimant worked continuously for 3 months and 24 days, so he enjoyed rights under the law. The respondent, as employer, opted to keep casual terms instead of issuing a written contract as required by section 10(6) and (7).
Lawfulness of termination due to non-availability of work
Although termination for lack of work is permissible as redundancy under section 40, failure to issue notice or pay terminal dues rendered the termination unfair, warranting compensation of one month's pay under section 43
There was no dispute that employment ended due to no work availability. Section 40 permits termination for non-availability of work on condition of notice and payment of terminal dues. No notice was issued and no dues paid. Pursuant to section 43, the employment terminated without due process even where redundancy existed, so compensation of one month's pay (Ksh.30,000) was appropriate.
Entitlement to leave pay for the last continuous period of employment
Leave pay is due only for the 3½ months last worked at 1.75 days' wage per full month, amounting to Ksh.5,250
Under section 37(2) and (3) read with section 28(2) of the Employment Act, leave accrues at 1.75 days per full month worked. Since the claimant's continuous employment was limited to 3 months and 24 days, leave pay is due only for that period, computed at the monthly wage of Ksh.30,000, yielding Ksh.5,250. Claims for leave over 3 years fail because they fall outside the continuous employment period.
Legal principles established
#- A casual employee who works for a period amounting to not less than one month, or performs work not reasonably expected to be completed within three months, is deemed to be employed on monthly wages and protected under section 35(1)(c) of the Employment Act
- Termination due to non-availability of work (redundancy) is lawful under section 40 of the Employment Act only if the employee is issued with notice and terminal dues are paid
- Where no notice is issued before redundancy, notice pay is due at the last monthly wage, and termination without due process attracts compensation even where redundancy existed
Court orders
#- 1.Judgment entered for the claimant in the following terms: compensation Ksh.30,000; notice pay Ksh.30,000; leave pay Ksh.5,250
- 2.Each party shall pay own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over the dispute (Employment and Labour Relations Court Act); dispute referred as a claim for unlawful termination of employment
Relief refused
#Salary for 15 days worked in January 2016 (Ksh.15,000)
No evidence of work in January 2016
House allowances since March 2013 (Ksh.171,000)
Wage of Ksh.30,000 was above the minimum wage; adding house allowance would be unjust enrichment
Service pay for 3 years (Ksh.45,000)
Not due, claimant only worked 3 months and 24 days in continuous employment
Damages for unlawful termination (Ksh.360,000)
Not due; employment terminated on redundancy grounds but without due process, compensated instead by one month's pay
Claims outside the last continuous employment period of 3 months and 24 days
Claimant cannot claim outside the continuous period of employment
Costs
Each party shall pay 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.
Accordingly, judgement is hereby entered for the claimant in the following terms; a. Compensation ksh.30,000; b. Notice pay Ksh.30,000; c. Leave pay Ksh.5,250; and d. Each party shall pay own costs.
termination of employment due to non-availability of work is allowed under the provisions of section 40 of the Act, on condition that the employee is issued with notice and terminal dues paid.
the claimant having worked for over a period of one months and remained in the service of the respondent for over 3 months and 24 days, enjoyed rights under the law.
House allowance claimed on the wage earned at Ksh.30, 000 is over and above the due minimum wage and to add a house allowance would be unjust enrichment.
Issues in the judgment
#Judgment states the respondent's defence admits employment from 'the year 2015 and 2016' but also records payments purportedly for 'May, 2015' within a narrative covering September 2015 to May 2016, an internal date inconsistency
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sakei Kidenga v Mattan Construction Limited [2021] KEELRC 2360 (KLR)", Case Analysis (2021). Cause No. 1867 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2360/eng@2021-05-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.