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ELRCPartially AllowedAppeal No E046 of 2024· [2025] KEELRC 179 (KLR)

Cyka Manpower Services v Nzuki & 9 others (Appeal E046 of 2024) [2025] KEELRC 179 (KLR)

Employment and Labour Relations Court
30 January 2025
2,971 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court ruled that workers hired on short contracts can become permanent employees after three months, making their termination unfair.

What this practically means

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Executive summary

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This is a first appeal from the judgment of the trial magistrate in Mombasa CMELRC E355 of 2021, delivered on 29 February 2024, which found that ten machinists and stuffers were unfairly and unlawfully terminated and awarded them all reliefs claimed in the Memorandum of Claim. The appellant contended the respondents were casual, piece-rate employees engaged intermittently under its contract with Tata Chemicals Magadi, which expired on 31 March 2021, so employment ended by effluxion of time. The respondents maintained they were in continuous service from 2008 and protected under Section 37 of the Employment Act. The court, applying the retrial role of a first appeal, found the appellant had produced no work records for the 33-month period, while the respondents produced bank statements proving payment. They were therefore protected under Section 37 and their termination without prior notice of reasons was unfair. However, the court faulted the magistrate for entering a general award without evaluating each head of claim. It substituted specific awards: notice pay and 3 months' compensation for unfair termination for all respondents, 33 days' leave pay under the 18-month accumulation cap, and Certificates of Service under Section 51. Claims for unlawful deductions (statutory NHIF/KRA remittances), house allowance (wages exceeded legal minimum) and public holidays (not particularised) failed. Costs of the suit as awarded by the trial court stood; on the appeal each party was ordered to bear its own costs.

Key legal issues

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01

Status of the respondents - casual or protected employees under Section 37

Holding

The respondents were in continuous service and protected under Section 37 of the Employment Act because the appellant failed to produce work records to prove casual or piece-rate engagement

Reasoning

The appellant produced only its contract with Tata Chemicals Magadi and no work records for the 33 months the respondents worked. The respondents produced bank statements showing payment by the appellant from 2018 to March 2021. Section 37(1)(b) converts casual employment into a term contract where work cannot reasonably be completed within a period equivalent to three months or more. Authorities confirm an employer cannot keep an employee casual under the guise of peak and off-peak sessions.

p. 7
02

Unfair termination and notice

Holding

Termination was unfair; the appellant was obliged to notify the respondents of the reasons leading to termination before notifying the labour officer, and notice pay and compensation were due

Reasoning

The main contract with Tata Chemicals Magadi expired on 31 March 2021 and the respondents' employment ended without notice to them. Although reasons were shared with the Labour Office, the employees themselves had to first be notified of the reasons. The trial court correctly allocated notice pay and compensation; the appellate court fixed compensation at 3 months' salary given the 33-month engagement and absence of due process.

p. 7
03

Leave pay accumulation

Holding

Leave can only accumulate for up to 18 months under Section 28(4) unless the employee proves a request to take leave was deferred; respondents entitled to 33 leave days based on last wage

Reasoning

The employer bore the duty to submit work records on leave. However, Section 28(4) caps accumulation at 18 months absent evidence that a leave request was deferred by the employer. Since the respondents worked 33 months from June 2018 to March 2021, the court awarded only 33 days of leave pay calculated on the last wage.

p. 8

Legal principles established

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  • A first appeal is by way of retrial; the court must reconsider and evaluate the evidence and draw its own conclusions while making due allowance for not having seen or heard the witnesses
  • Where an employer fails to produce work records, the employee's evidence of continuous service is accepted and Section 37 of the Employment Act protects the employee from disguised casual employment
  • An employee is entitled to an unconditional Certificate of Service at the end of employment whatever the reason for termination
  • Employment claims must each be reviewed and individually allocated; a general award is not appropriate

Court orders

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  1. 1.Judgment in Mombasa CMELRC E355 of 2021 set aside and substituted with specific awards
  2. 2.1st respondent: Notice pay Ksh.40,500; compensation for unfair termination Ksh.121,500; leave pay for 33 days Ksh.44,550
  3. 3.2nd to 10th respondents: Notice pay Ksh.21,000 each; compensation for unfair termination Ksh.63,000 each; 33 leave days Ksh.23,100 each
  4. 4.Each respondent to be issued with a Certificate of Service under Section 51 of the Employment Act
  5. 5.Costs of the suit as awarded by the trial court
  6. 6.For the appeal, each party bears its own costs

Authorities

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Legislation

  • Employment ActSection 37 (including s.37(1)(b))
  • Employment ActSection 47(5)
  • Employment ActSection 35
  • Employment ActSection 40
  • Employment ActSection 45
  • Employment ActSection 28 (including s.28(4))
  • Employment ActSection 31
  • Employment ActSection 51

Cases cited (8)

  • Kago v Inades Formation Kenya
    Cause No. E953 of 2021
  • Rashid Mazuri Ramadhan v Doshi & Co. (Hardware) Ltd & another
    [2017] eKLR
  • Simiyu v Nzoia Sugar Company Limited
    Cause No. E005 of 2021
  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
  • Trust Bank Limited v Paramount Universal Bank Limited & 2 others
    HCC No. 1243 of 2001
  • Selle & Another v Associated Motor Boat Co. Ltd. & Others
    (1968) EA
  • Kenyatta University v Maina
    [2022] KECA 1201 (KLR)
  • Mungai v Kabuito Contractors Limited
    [2022] KECA 1235 (KLR)
On appeal from
Magistrates' Court (CMELRC), Mombasa
Mombasa CMELRC E355 of 2021
Jurisdiction invoked
First appeal from the trial magistrate's court in employment and labour relations matters

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, "Cyka Manpower Services v Nzuki & 9 others (Appeal E046 of 2024) [2025] KEELRC 179 (KLR)", Case Analysis (2025). Appeal No E046 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/179/eng@2025-01-30

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