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ELRCPartially AllowedCause No 985 of 2017· [2022] KEELRC 355 (KLR)

Amos Kimani Gakii v Amboseli Court Ltd [2022] KEELRC 355 (KLR)

Employment & Labour Relations Court
24 March 2022
AMAnna Ngibuini Mwaure
1,906 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed that casual workers employed continuously for a month or more automatically become monthly employees, and firing them without notice or a hearing is unfair.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent from 1 August 2008 as a constructor paid daily wages that rose to Kshs.800 per day, was orally informed on 9 January 2016 that his employment had ended because work had reduced. He sued seeking a declaration of unfair termination, payment of Kshs.303,803 for various dues, Kshs.230,400 compensation, a certificate of service and costs. The Respondent, which filed a response but called no witness, contended the Claimant was a casual hired as work became available and not entitled to leave. The court framed three issues: conversion of casual employment to a monthly contract, lawfulness of the termination, and entitlement to reliefs. Applying section 37(1) of the Employment Act, the court found that the Claimant's 7-8 years of continuous work, confirmed by a recommendation letter of 4 February 2016, converted his casual engagement into a monthly contract terminable on 28 days' written notice under section 35(1)(c). Drawing an adverse inference from the Respondent's failure to produce employment records, and finding no reason or fair procedure established under sections 41 and 45, the court declared the dismissal unfair, wrongful and unlawful. Remedies awarded: one month's notice pay (Kshs.19,200), housing allowance for 7 years (Kshs.103,680), service pay (Kshs.67,200), and three months' compensation (Kshs.57,600), totalling Kshs.247,680, with costs and interest. Unpaid leave was declined for lack of particulars. A certificate of service was to issue within 30 days.

Key legal issues

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01

Conversion of casual employment to a monthly contract

Holding

The Claimant's 7-8 years of continuous work converted his casual engagement into a contract of service payable monthly, terminable on 28 days' written notice under section 35(1)(c).

Reasoning

The court applied section 37(1) of the Employment Act, noting the Claimant worked from 2008 to January 2016. The Respondent asserted but did not prove non-continuous engagement, giving no evidence. The manager's recommendation letter of 4th February 2016 confirmed 8 years of service, establishing deemed monthly terms.

p. 2
02

Wrongful and unfair termination

Holding

The termination was unfair, wrongful and unlawful because no reason was cited and no notice or hearing was given.

Reasoning

Section 45 requires the employer to prove valid reason and fair procedure. The Respondent adduced no evidence and called no witness. Termination of a monthly contract required 28 days' notice under section 35(1); none was shown, contravening sections 36, 41 and 45.

p. 3
03

Remedies

Holding

Notice pay, housing allowance for 7 years, service pay and 3 months' compensation awarded; unpaid leave declined for want of particulars.

Reasoning

The court assessed remedies under sections 36 and 49 of the Employment Act. Absence of employer records on consolidation justified housing allowance; no proof of NSSF contributions justified service pay; three months' compensation was a moderate award reflecting the unfair dismissal.

p. 3

Legal principles established

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  • Casual employment converts by operation of section 37(1) of the Employment Act to a monthly contract where the employee works continuously for the equivalent of not less than one month or performs work not reasonably expected to be completed within a short period.
  • An employer bears the burden of proving both a valid and fair reason and a fair procedure for termination under section 45 of the Employment Act.
  • Where an employer withholds employment records within its custody, adverse inference may be drawn against it.

Court orders

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  1. 1.One month salary in lieu of notice of Kshs.19,200 under Section 36 of the Employment Act
  2. 2.Housing allowance of Kshs.103,680 computed over 7 years
  3. 3.Service pay of Kshs.67,200 as the Respondent did not prove remittance of NSSF dues
  4. 4.Compensation of 3 months' salary equivalent, Kshs.57,600, for unlawful termination
  5. 5.Costs of the suit awarded to the Claimant
  6. 6.Interest at court rates from the date of judgment till full payment
  7. 7.Respondent to issue the Claimant a certificate of service within 30 days
  8. 8.Total award of Kshs.247,680

Authorities

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Legislation

  • Employment Actsection 45(2)
  • Employment Actsection 41(2)
  • Employment Actsection 37(1)
  • Employment Actsection 35(1)(c)
  • Employment Actsection 36
  • Employment Act 2007sections 36 and 45
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (1)

  • Daniel Kiplagat Kipkeibut versus Smep Deposit Taking Microfinance
    2016 eKLR
Jurisdiction invoked
Article 162(2) of the Constitution - Employment and Labour Relations Court first-instance jurisdiction over employment disputes

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, "Amos Kimani Gakii v Amboseli Court Ltd [2022] KEELRC 355 (KLR)", Case Analysis (2022). Cause No 985 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/355/eng@2022-03-24

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