Kilui v Tropical Ice (E.A) Limited (Cause E995 of 2021) [2024] KEELRC 125 (KLR)
The bottom line
#A Kenyan court converted a casual worker's job to a formal contract but dismissed all money claims because the employee could not prove unfair termination.
What this practically means
#Executive summary
#Key legal issues
#Nature of the Claimant's employment
The Claimant was a casual employee as defined in Section 2 of the Employment Act, engaged at a consolidated daily rate payable per safari.
The letter of renewal dated 15th June 2002 showed termination on one day's notice and daily payment. The Respondent adduced no evidence of the terms of the relationship after January 2003 or of the seasonal nature of the business. Selective records were produced. The court inferred the relationship continued on similar terms, and found the Claimant was a casual employee.
Conversion from casual to contract of service under Section 37
The employment transitioned from casual to a contract of service as the statutory threshold of continuous service was met.
The court was persuaded that the parties continued the relationship after January 2003 and that the Claimant rendered services for the duration prescribed by Section 37, namely at least one month of continuous service or the equivalent of three months' working days in aggregate, entitling him to attendant rights such as leave. The Respondent produced no evidence to rebut the transition.
Whether termination was unfair
The Claimant failed to discharge the burden of proving unfair or wrongful termination and that claim was dismissed.
Section 47(5) places the burden of proving unfair termination on the employee. The Claimant alleged he was turned away at the Respondent's gate after recovery but gave no dates, no witness, and no particulars; his own documents showed he had not recovered by July 2021. The claim of unlawful termination lacked relevant particulars and failed.
Legal principles established
#- Under Section 37 of the Employment Act, a casual employee whose service exceeds the statutory threshold transitions to a contract of service.
- Under Section 10(6) of the Employment Act, employment records must be kept for five years after termination of employment, which signifies cessation of the relationship.
- Under Section 47(5) of the Employment Act, the burden of proving unfair termination rests on the employee and does not shift even where the employer's defence is weak.
- Under Section 31(2)(a) of the Employment Act, house allowance need not be paid where the wage is consolidated.
Court orders
#- 1.Declaration that the Claimant's employment transitioned from casual employment to a contract of service by virtue of Section 37 of the Employment Act, 2007
- 2.Dismissal of the declaration that termination of employment was wrongful, unfair and unlawful
- 3.Dismissal of the claims for one month's salary in lieu of notice, six months' salary compensation and damages for unfair termination
- 4.Dismissal of the claim for underpayment of salary for 38 years
- 5.Declining of the claim for annual leave for 38 years
- 6.Dismissal of the claim for gratuity benefit for 38 years
- 7.Declining of the claim for house allowance
- 8.Declining of the claim for sick leave for 38 years
- 9.Dismissal of the Claimant's suit save for the declaration
- 10.Order that each party bear their own costs
- Jurisdiction invoked
- Original jurisdiction of the Employment and Labour Relations Court under the Employment Act, 2007; proceedings conducted under Regulation 21 of the Employment and Labour Relations Court (Procedure) Rules, 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kilui v Tropical Ice (E.A) Limited (Cause E995 of 2021) [2024] KEELRC 125 (KLR)", Case Analysis (2024). Cause No E995 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/125/eng@2024-02-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.