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ELRCDismissed· [2022] KEELRC 41 (KLR)

Ondari v Prime Steel Mills Limited (Cause 247 of 2017) [2022] KEELRC 41 (KLR)

Employment and Labour Relations Court
28 April 2022
SRStella Rutto
1,533 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The claimant alleged he worked for the respondent as a casual labourer from 2006 until August 29, 2016, when his services were allegedly unlawfully and unfairly terminated. He claimed that his casual contract had been converted to a term contract by operation of section 37(1)(a) of the Employment Act and sought Kshs 1,820,984.00 as severance pay, notice pay, unpaid overtime, accrued leave and compensatory damages. The respondent denied continuous engagement, asserting the claimant never worked for an aggregate period of one month and asking for dismissal with costs. At the hearing, the claimant testified and produced casual labour cards; the respondent's supervisor (RW1) produced clock in records for July 2016. The court framed three issues: conversion, unfair termination, and entitlement to reliefs. It found the casual labour cards showed the claimant worked intermittently, with absences on several days in specific weeks, and the July 2016 clock in records confirmed four days of absence. The court held the claimant failed to prove continuous service of not less than one month, so his employment was not converted to a term contract. The unfair termination issue could not logically be determined since the engagement was casual and terminable under section 35(1)(a) of the Employment Act. The claim was dismissed in its entirety, with each party bearing its own costs.

Key legal issues

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01

Whether casual employment was converted to a term contract under section 37(1)(a) of the Employment Act

Holding

The claimant's employment was not converted as he did not work continuously for an aggregate period of one month

Reasoning

The court examined the claimant's casual labour cards and the respondent's clock in records for July 2016, which showed the claimant was absent on various days and worked intermittently. The burden lay on the claimant to demonstrate continuous service of not less than one month; the very documents he produced confirmed occasional, not continuous, engagement.

p. 3
02

Whether the claimant was unfairly and unlawfully terminated

Holding

The issue could not be determined because the employment was casual and terminable under section 35(1)(a) of the Employment Act

Reasoning

Since conversion failed, the second issue fell away logically. A casual engagement not converted to a term contract remains one terminable within section 35(1)(a), and the fairness protections applicable to term contracts were not engaged.

p. 3

Legal principles established

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  • Conversion of casual employment to a term contract under section 37(1)(a) of the Employment Act requires continuous working for an aggregate period of not less than one month; intermittent engagements do not qualify.

Court orders

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  1. 1.The instant claim is dismissed in its entirety
  2. 2.Each party shall bear its own costs

Authorities

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Legislation

  • Employment Actsection 37(1)(a)
  • Employment Actsection 2 (definition of casual employee)
  • Employment Actsection 35(1)(a)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (2)

  • Silas Mutwiri v Haggai Multi-Cargo Handling Services Limited
    [2013] eKLR
  • Five Forty Aviation Limited v Erwan Lanoe
    [2019] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance employment claim)

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, "Ondari v Prime Steel Mills Limited (Cause 247 of 2017) [2022] KEELRC 41 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/41/eng@2022-04-28

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