Mwadime & 3 others v Polystar Plastiks Limited (Cause E040, E038, E039 & E041 of 2024 (Consolidated)) [2024] KEELRC 2793 (KLR)

Section 10(3) of the Employment Act permits conversion of casual employment into written terms, which bind the court unless unlawful or contrary to public policy. The 2019 written contract was therefore valid. Prior contracts ended on their own terms, so severance-type claims cannot be extended over them. Section 90 imposes a 3-year limitation for employment claims and a 12-month window from cessation for continuing injuries, which frames each claim.

Redundancy on operational grounds is a lawful mode of termination. The claimant admitted receipt of the 16 November 2023 notice and did not contest the financial constraints cited. The employer must issue notice together with notice to the labour officer under Section 40; this was done, and notice may be oral or written. The respondent also offered terminal dues including notice pay and severance, which the court described as generous and which the claimant should have accepted.

Section 40(1)(g) provides severance at not less than fifteen days' pay per completed year of service. Severance is due for every full year worked and is not prorated. Because earlier contracts ended by effluxion of time and not redundancy, extending severance over them would negate the very written-contract principle the claimant invokes under Section 10(3). The redundancy therefore attracts severance only for the 2023 service year.

The claimant's timesheets were not signed by the respondent, and the schedule did not indicate the years referenced. The respondent's uncontroverted evidence was that the night shift ended in 2019 and by 2023 only the day shift operated, from 8 a.m. to 5 p.m. Overtime accrues monthly and unpaid overtime is a continuing injury under Section 90, but the claim filed on 10 May 2024 exceeded 12 months from cessation, following the Court of Appeal in German School Society.