Mlandi & 9 others v Dimamu Agencies Limited (Cause 855 of 2017) [2023] KEELRC 10 (KLR)

Section 2 of the Employment Act defines a casual employee as one paid at the end of each day and not engaged for longer than 24 hours. Section 37(1)(a) converts casual employment where the employee works a period amounting to not less than one month. The Respondent pleaded employment spanning years but produced no employment records; under section 75 the duty to keep records lies with the employer. The Court therefore adopted the Claimants' pleaded dates of service and found continuous service exceeding one month, converting their engagements to term contracts subject to sections 35 and 45.

Section 45(1) prohibits unfair termination and section 45(2) requires a valid reason. Section 41 requires the employer to explain reasons to the employee in a language understood and allow a fellow employee or shop floor representative. The Claimants were simply told to pack and leave, with no termination letters, no show-cause letters, and no disciplinary hearing. Prior written warnings did not cure the absence of an opportunity to defend themselves. The Respondent failed the substantive justification and procedural fairness tests.

Having found unfair termination, the Court awarded each Claimant one month's salary in lieu of notice, service pay (as there were no NSSF records proving remittance), and compensatory damages calibrated to length of service (4-5 months for longer-serving Claimants, 1-2 months for shorter service). Overtime, untaken leave and house allowance were treated as specific/special damages requiring strict proof, which the Claimants did not discharge. Unpaid salary for 3 days was awarded to the 7th Claimant.