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ELRCPartially AllowedELRCA E188 of 2024 (consolidated with ELRCA E187 of 2024)· [2025] KEELRC 201 (KLR)

Kitui Flour Mills Limited v Mitambo & another (Appeal E188 & E187 of 2024 (Consolidated)) [2025] KEELRC 201 (KLR)

Employment and Labour Relations Court
30 January 2025
2,499 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 casual workers become protected employees, but cut a 12-month unfair termination award to one month's pay.

What this practically means

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Executive summary

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This is a first appeal from the ELRC magistrate's court at Mombasa, consolidating Appeals ELRCA E188 and E187 of 2024. The respondent, employed from 2008 as a general worker/loader at daily wages, was summarily denied access to the workplace in November 2022 after refusing to sign a fixed-term contract. The trial court found unfair termination and awarded compensation of Ksh.264,600 (12 months), notice pay, leave pay, wages for two days, and costs. On appeal, the court re-evaluated the record and found the respondent's employment was protected under Section 37 of the Employment Act because the work accrued daily beyond a day's duration. However, the employer was justified in issuing written terms under Section 10, and the respondent's refusal to sign should have been handled through due process under Sections 41 and 44; the employer's failure caused unfair termination. The court upheld notice pay of Ksh.20,050 but reduced the 12-month compensation to one month's pay as the maximum is reserved for exceptional cases. Underpayment claims failed as continuing injuries limited to 12 months under Section 90, and records showed the wage paid exceeded the minimum. Leave pay was recalculated to 33 days at Ksh.735, totalling Ksh.24,255, leave being non-accumulable beyond 18 months. A certificate of service was ordered. The trial judgment was varied accordingly, with trial costs preserved and each party bearing its own costs of the appeal.

Key legal issues

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01

Conversion of casual employment under Section 37

Holding

The respondent's employment was protected under Section 37 since the work accrued daily and he was engaged over more than a day

Reasoning

The court applied Section 2 and Section 37 of the Employment Act, relying on Nanyuki Water and Sewerage and Peter Wambugu Kariuki, holding that where work does not end within a day, the casual employee becomes protected with rights and benefits of a term employee.

p. 4
02

Unfair termination for refusal to sign fixed-term contract

Holding

The employer could convert to written terms under Section 10, but refusal to sign required due process under Sections 41 and 44; failure caused unfair termination

Reasoning

While the appellant was justified in issuing written terms, the respondent's refusal should have been handled through the summary dismissal procedures. The appellant failed to follow due process, so the trial court's awards of notice pay and compensation were upheld as justified.

p. 5
03

Quantum of compensation

Holding

12 months' award reduced to one month's pay of Ksh.20,050

Reasoning

The maximum compensation under Section 45(5) is reserved for exceptional cases with justification. Since the appellant had a legitimate reason arising from the respondent's refusal to sign a lawful contract, the maximum award was excessive and was reduced to one month's pay.

p. 5
04

Leave pay

Holding

Leave entitlement justified but limited to 33 days at Ksh.735, totalling Ksh.24,255

Reasoning

As a protected employee the respondent was entitled to 21 days' annual leave per Section 28, but leave cannot accumulate beyond 18 months unless approved. The award was thus recalculated to 33 days based on the last wage.

p. 5

Legal principles established

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  • A casual employee engaged on work that is not likely to end and who remains on the shop floor daily is protected under Section 37 of the Employment Act
  • Underpayment claims are continuing injuries accruing daily or monthly and must be claimed within 12 months of cessation
  • Annual leave cannot be accumulated beyond 18 months unless approved by the employer under Section 28(4)
  • A first appeal requires fresh, exhaustive re-evaluation of the record with deference to trial court findings

Court orders

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  1. 1.Compensation Ksh.22,050
  2. 2.Notice pay Ksh.22,050
  3. 3.Annual leave Ksh.24,255
  4. 4.Certificate of service
  5. 5.Costs of proceedings before the trial court as awarded; each party to bear its own costs of the appeal
  6. 6.Orders to apply in ELRCA E187 of 2024 as consolidated
On appeal from
Magistrates' Court (ELRC), Mombasa
CMELRC E018 of 2023 and E018 of 2023
Jurisdiction invoked
First appeal from the trial court under the Employment Act and ELRC Act (first appellate re-evaluation of the entire record)

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, "Kitui Flour Mills Limited v Mitambo & another (Appeal E188 & E187 of 2024 (Consolidated)) [2025] KEELRC 201 (KLR)", Case Analysis (2025). ELRCA E188 of 2024 (consolidated with ELRCA E187 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/201/eng@2025-01-30

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