Kitui Flour Mills Limited v Mitambo & another (Appeal E188 & E187 of 2024 (Consolidated)) [2025] KEELRC 201 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Conversion of casual employment under Section 37
The respondent's employment was protected under Section 37 since the work accrued daily and he was engaged over more than a day
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.
Unfair termination for refusal to sign fixed-term contract
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
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.
Quantum of compensation
12 months' award reduced to one month's pay of Ksh.20,050
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.
Leave pay
Leave entitlement justified but limited to 33 days at Ksh.735, totalling Ksh.24,255
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.
Legal principles established
#- 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
#- 1.Compensation Ksh.22,050
- 2.Notice pay Ksh.22,050
- 3.Annual leave Ksh.24,255
- 4.Certificate of service
- 5.Costs of proceedings before the trial court as awarded; each party to bear its own costs of the appeal
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.