Cyka Manpower Services v Nzuki & 9 others (Appeal E046 of 2024) [2025] KEELRC 179 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Status of the respondents - casual or protected employees under Section 37
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
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.
Unfair termination and notice
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
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.
Leave pay accumulation
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
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.
Legal principles established
#- 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
#- 1.Judgment in Mombasa CMELRC E355 of 2021 set aside and substituted with specific awards
- 2.1st respondent: Notice pay Ksh.40,500; compensation for unfair termination Ksh.121,500; leave pay for 33 days Ksh.44,550
- 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.Each respondent to be issued with a Certificate of Service under Section 51 of the Employment Act
- 5.Costs of the suit as awarded by the trial court
- 6.For the appeal, each party bears its own costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.