Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No. 1867 of 2016

Sakei Kidenga v Mattan Construction Limited [2021] KEELRC 2360 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
13 May 2021
1,411 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

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

#
The claimant, Sakei Kidenga, sued Mattan Construction Limited for allegedly unlawful termination of employment on grounds of redundancy. He testified he was employed on 15 March 2013 as a driver at Ksh.30,000 per month and terminated on 4 May 2016 by a director, Najib Rashid, who told him there was no work, without notice or terminal dues. He sought notice pay, salary for 15 days in January 2016, leave pay for 3 years, house allowances, service pay, unlawful termination pay and damages. The defence, filed but unrepresented at the hearing despite service, admitted payment records but contended the claimant was hired on a needs basis for short durations, working less than 6½ months from September 2015, and denied unfair termination. The hearing proceeded in the respondent's absence. The court held that under section 37 of the Employment Act, 2007, the claimant's casual employment converted to protected monthly employment given continuous service of 3 months and 24 days. Termination due to lack of work is permissible under section 40, but only with notice and payment of terminal dues; none was issued, so under section 43 the termination was unfair, attracting one month's compensation. Claims for January 2016 salary, house allowance, service pay and general damages were refused as unsupported or unjust enrichment. Judgment was entered for the claimant: compensation Ksh.30,000, notice pay Ksh.30,000, and leave pay Ksh.5,250, with each party bearing their own costs. Delivered by M. Mbaru, J, on 13 May 2021.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the claimant was a casual employee or an employee protected under section 37 of the Employment Act, 2007
  2. 2.What was the duration of the claimant's continuous employment
  3. 3.Whether the termination of employment due to lack of work (redundancy) was lawful and followed due process
  4. 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

#
01

Conversion of casual employment to term contract under section 37 of the Employment Act

Holding

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

Reasoning

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).

p. 2
02

Lawfulness of termination due to non-availability of work

Holding

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

Reasoning

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.

p. 3
03

Entitlement to leave pay for the last continuous period of employment

Holding

Leave pay is due only for the 3½ months last worked at 1.75 days' wage per full month, amounting to Ksh.5,250

Reasoning

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.

p. 3

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. 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. 2.Each party shall pay own costs

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority

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

p. 3

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

p. 3

Service pay for 3 years (Ksh.45,000)

Not due, claimant only worked 3 months and 24 days in continuous employment

p. 3

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

p. 3

Claims outside the last continuous employment period of 3 months and 24 days

Claimant cannot claim outside the continuous period of employment

p. 2

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.
p. 3Final orders and disposition
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.
p. 3Redundancy and due process under section 40
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.
p. 2Conversion of casual employment under section 37
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.
p. 3House allowance claim refused

Issues in the judgment

#
minor

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.