Fredrick Ndaita Moses & another v Nelson Kuria & another [2022] KEELRC 691 (KLR)
The bottom line
#Kenyan workers called 'casual labourers' for years are legally permanent staff, and employers who fire them without notice and a hearing must pay compensation.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimants were casual employees
The Claimants were not casual employees; their engagement converted by operation of law to monthly term contracts after one month's continuous service under Section 37.
The Employment Act defines a casual employee as one paid at the end of each day and not engaged for longer than twenty-four hours at a time. The Claimants worked continuously for 9 and 14 years respectively, paid monthly in cash or via Mpesa. Section 37(1) deems a casual employee who works for the equivalent of one month or more to be on monthly wages. Their terms therefore converted automatically to term contracts.
Whether termination was valid procedurally and substantively
The termination was unfair; the Respondents proved neither a valid and fair reason nor a fair procedure under Sections 41, 43 and 45.
Sections 41 and 45 require notice, explanation, hearing and a valid fair reason. The Claimants testified no notice to show cause or disciplinary hearing occurred, and this evidence was unrebutted, the Respondents having closed their case without calling any witness. The employer therefore failed to discharge its burden under Section 43, and the Claimants discharged theirs under Section 47(5).
Whether the Claimants are entitled to the reliefs sought
Entitled to notice pay, leave pay for three years and compensation of five months' salary each; claims for public holidays, rest days, overtime, severance and underpayment dismissed.
Having found unfair termination, Section 49 entitles the Claimants to notice pay and compensation. Considering Section 49(4) factors, five months' salary was reasonable rather than the pleaded twelve. Leave was awarded because the employer failed to avail records of utilisation. Overtime, holiday and rest-day claims lacked proof; severance does not apply absent redundancy; and the underpayment claim failed because the salary exceeded the statutory minimum wage.
Legal principles established
#- Casual employment automatically converts to a monthly term contract under Section 37 of the Employment Act where the employee works continuously for the equivalent of one month or more
- An employer must prove both valid reason and fair procedure for termination; failure to rebut uncontradicted evidence of unfair termination discharges the employee's burden under Section 47(5)
- Where the employer fails to avail leave records proving utilisation of leave, the employee is entitled to payment for leave days
Court orders
#- 1.Judgment entered in favour of Fredrick Ndaita Moses: one month salary in lieu of notice Kshs.15,000.00; payment of leave days Kshs.36,346.15; damages for wrongful termination Kshs.75,000.00; total Kshs.126,346.15
- 2.Judgment entered in favour of Patrick Muia Kitungi: one month salary in lieu of notice Kshs.18,000.00; payment of leave days Kshs.43,615.40; damages for wrongful termination Kshs.90,000.00; total Kshs.151,615.40
- 3.The amounts awarded shall be subject to statutory deductions
- 4.Claimants awarded costs of the suit and interest from the date of judgment until settlement in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (employment dispute)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Fredrick Ndaita Moses & another v Nelson Kuria & another [2022] KEELRC 691 (KLR)", Case Analysis (2022). Cause No 1147 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/691/eng@2022-02-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.