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ELRCPartially AllowedAppeal from Senior Principal Magistrates Court (Kilgoris) — Memorandum of Appeal lodged at Kilgoris High Court, transferred to ELRC· [2024] KEELRC 1385 (KLR)

Tips (Kenya) Ltd v Nyaundi (Appeal 2 of 2024) [2024] KEELRC 1385 (KLR)

Employment and Labour Relations Court
12 June 2024
RSRadido Stephen
1,210 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court confirmed a worker paid fortnightly or monthly is not casual, upholding unfair termination compensation but cancelling reinstatement.

What this practically means

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Executive summary

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This is a first appeal to the Employment and Labour Relations Court at Kisumu against a judgment of the Senior Principal Magistrate's Court delivered on 23 June 2021, which found that TPS (Kenya) Ltd unfairly terminated Vincent Onywoki Nyaundi's employment and ordered reinstatement plus the equivalent of 12 months' wages as compensation. The appeal was originally lodged in the High Court at Kilgoris but transferred to this Court after the High Court declined jurisdiction. The Court, per Radido Stephen, J, applied the standard first-appeal duty of re-evaluating the evidence. On the nature of employment, it held that under section 2 of the Employment Act a casual employee is paid at the end of the day; the Respondent was paid accumulated wages fortnightly or monthly, worked continuously from 2012 to 2018, and NSSF statements showed standard contributions, so he was not a casual employee. He was therefore entitled to protections under sections 35(1), 41, 43 and 45, and the finding of unfair termination was upheld. However, the Court held the Magistrate erred in law in awarding both reinstatement and maximum compensation, since these are exclusive remedies under section 49. As more than three years had elapsed since separation, reinstatement was inappropriate. The appeal succeeded only partially: the reinstatement order was set aside and vacated, the compensation award was confirmed, each party bore its own costs of the appeal, and the Respondent retained costs in the magistrates' court.

Key legal issues

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01

Nature of employment — casual vs. protected employee

Holding

The Respondent was not a casual employee; he served continuously from 2012 to 2018 and was paid fortnightly or monthly, so he enjoyed statutory protections

Reasoning

Section 2 of the Employment Act defines a casual employee as one paid at the end of the day, when the contract ends. The Respondent was paid accumulated wages fortnightly or monthly and worked continuously per attendance records. NSSF statements showed standard payroll contributions, which casual employees ordinarily do not attract. Hence the protections of sections 35, 41, 43 and 45 applied.

p. 3
02

Unfair termination

Holding

The Magistrate did not err in finding unfair termination; verbal termination without written notice breached sections 35(1), 41, 43 and 45

Reasoning

The Appellant did not deny terminating the contract verbally, contending no written notice was needed for an oral contract. The Court held the Respondent was entitled to written notice, procedural fairness and substantive fairness, so the finding of unfair termination stood.

p. 3
03

Remedies — reinstatement plus compensation

Holding

The trial court erred in awarding both reinstatement and maximum compensation, as they are exclusive remedies; reinstatement was set aside

Reasoning

Section 49(1) and (3) sets out remedies for unfair termination; compensation and reinstatement are exclusive of each other. The Magistrate should have granted reinstatement or re-engagement without loss of benefits, not both. Further, over 3 years had elapsed since separation, making reinstatement inappropriate, so the compensation award was confirmed alone.

p. 3

Legal principles established

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  • A casual employee is one paid at the end of the day; where payment is accumulated fortnightly or monthly, the contract does not end daily and the employee is not casual
  • Reinstatement and compensation are mutually exclusive remedies under section 49 of the Employment Act
  • Reinstatement is inappropriate where significant time has elapsed since separation

Court orders

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  1. 1.The order of reinstatement is set aside and vacated
  2. 2.The award of compensation (equivalent of 12 months' wages) is confirmed
  3. 3.Each party to bear own costs of the Appeal
  4. 4.The Respondent has costs before the Senior Principal Magistrates Court
On appeal from
Senior Principal Magistrates Court
Jurisdiction invoked
Appeal transferred from the High Court to this Court pursuant to directions given on 18 April 2024 and 7 May 2024 (employment and labour relations jurisdiction)

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, "Tips (Kenya) Ltd v Nyaundi (Appeal 2 of 2024) [2024] KEELRC 1385 (KLR)", Case Analysis (2024). Appeal from Senior Principal Magistrates Court (Kilgoris) — Memorandum of Appeal lodged at Kilgoris High Court, transferred to ELRC. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1385/eng@2024-06-12

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