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ELRCPartially AllowedELRC Appeal from Mariakani ELRC Cause No. E020 of 2021· [2025] KEELRC 446 (KLR)

Transport Messenger AU Bondo Limited v Owuor (Appeal E007 of 2024) [2025] KEELRC 446 (KLR)

Employment and Labour Relations Court
20 February 2025
MMM. MBARŨ
2,038 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Kenya's ELRC confirmed casual workers get full employment protection, but cut an unfairly fired worker's compensation because of his own gross misconduct.

What this practically means

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Executive summary

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This is a first appeal from the judgment in Mariakani ELRC Cause No. E020 of 2021, in which the learned magistrate found unfair termination of the respondent's employment and awarded him 8 months' compensation (Ksh.120,000), notice pay (Ksh.15,000), 2 years' leave pay (Ksh.21,000), a certificate of service and costs. The appellant contended that the respondent was not a continuous employee but a casual engaged on a need-basis paid by M-pesa, that he absconded duty by abandoning a lorry leading to clamping by the County Government, and that the claimant failed to discharge the burden of proof. The respondent maintained he proved employment as a supervisor from 2018 to January 2021 and that termination was unfair. The court, on a first appeal, held that entrusting an allegedly casual employee with a vehicle for test driving, without any written agreement, demonstrated a trusted and continuing employment relationship, and that under Section 37 of the Employment Act such a casual or oral-contract employee is protected. Although the respondent's abandonment of the vehicle amounted to gross misconduct under Section 44(4), the appellant never summoned him to respond, breaching procedural fairness as required by Walter Anuro v Teachers Service Commission. The court varied the trial court's award: compensation reduced to 3 months (Ksh.45,000) for failure to rationalize under Section 45(5), notice pay of Ksh.15,000 upheld, leave pay reduced to 33 days (Ksh.16,500), and the claim for three months' salary dismissed as those wages were admitted paid. Lower court costs stood as awarded; each party to bear its own costs of the appeal.

Key legal issues

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01

Existence of an employment relationship from 2018 to 2021

Holding

The respondent was a trusted employee of the appellant who served from 2018 to 2021; allowing an alleged casual employee to take a vehicle for test driving without a written agreement evidenced continuing employment.

Reasoning

Both parties admitted there was no written contract. The appellant conceded the respondent would be allocated duties when there was work, and its own witness admitted the respondent was on a casual basis as late as January 2021. The court reasoned that entrusting an unsecured vehicle to the respondent demonstrated trust consistent with continuous employment, and that failure to regulate relations in writing at the shop floor caused the claim.

p. 4
02

Protection of casual and oral-contract employees under Section 37 of the Employment Act

Holding

A casual or oral-contract employee working beyond a day or allocated duties not likely to end each day is protected under Section 37 and enjoys the rights and benefits under the Act.

Reasoning

The court invoked Sections 2, 7 and 8 of the Employment Act to hold that the respondent, though allegedly casual and engaged orally, fell within the statutory conversion protections of Section 37 because his engagement continued beyond single days and included allocations such as test driving a lorry.

p. 4
03

Procedural fairness in summary dismissal for gross misconduct (absconding)

Holding

Although absconding amounts to gross misconduct under Section 44(4) of the Employment Act, the employee must be summoned to give responses; failure to do so rendered the termination procedurally unfair.

Reasoning

The appellant's own submissions invoked Section 44(4), but the court noted the respondent was never summoned after abandoning the vehicle on 7 January 2021. Following Walter Anuro v Teachers Service Commission, substantive justification must be accompanied by procedural fairness, and the failure to hear the respondent exposed the appellant.

p. 4
04

Quantum of compensation for unfair termination

Holding

The 8-month compensation award was reduced to 3 months (Ksh.45,000) because the respondent's own gross misconduct in abandoning the vehicle was not factored in as required under Section 45(5).

Reasoning

The court acknowledged the termination was unfair for want of due process and that the respondent deserved notice pay and compensation. However, the respondent's uncontested conduct — abandoning the allocated vehicle leading to clamping by the County Government — was gross misconduct that should temper the award, applying Munyua v Aruasa on rationalizing compensation.

p. 4
05

Leave pay entitlement under Section 28 of the Employment Act

Holding

Leave due should not be accumulated for over 18 months; the respondent was entitled to 33 days' leave, not three years of accrued leave.

Reasoning

The court applied Section 28, which gives 21 days of accrued leave, read with Section 28(4) barring accumulation beyond 18 months. The respondent's claim for three years' unpaid leave was therefore reduced to leave accruing within the statutory window.

p. 5

Legal principles established

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  • An employee engaged as a casual or under an oral contract who continues to work beyond a day is protected under Section 37 of the Employment Act and enjoys the rights and benefits under the Act.
  • Even where an employer has valid and genuine reason to terminate employment, there must be both substantive justification and procedural fairness, including summoning the employee to respond to allegations of misconduct.
  • High awards of compensation are reserved for instances where the employer's conduct has been callous, actuated by ulterior motives, malicious or in bad faith, and an award not rationalized under Section 45(5) may be interfered with.

Court orders

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  1. 1.Review of the judgment in Mariakani CM ELRC No. E020 of 2021
  2. 2.Compensation of Ksh.45,000 (reduced from 8 months' compensation of Ksh.120,000 to 3 months)
  3. 3.Notice pay of Ksh.15,000
  4. 4.Leave pay of Ksh.16,500
  5. 5.Costs in the lower court as awarded by the trial court
  6. 6.Each party to bear its own costs of the appeal

Authorities

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Legislation

  • Evidence ActSection 109
  • Employment ActSection 47(5)
  • Employment ActSection 43(1)
  • Employment ActSection 44(4)(a)
  • Employment ActSection 41
  • Employment ActSections 2, 7, 8, 10 and 18
  • Employment ActSection 37
  • Employment ActSection 45(5)
  • Employment ActSection 28 and Section 28(4)

Cases cited (5)

  • D.T Dobie v Wanyonyi Wafula Chebukati
    (2014) eKLR
  • Joseph Nzioka v Smart Coatings Limited
    [2017] eKLR
  • Kenfreight (E.A) Limited v Benson K. Nguti
    [2016] KECA 409 (KLR)
  • Walter Anuro vs Teachers Service Commission
    (2013) eKLR
  • Munyua v Aruasa & 3 others
    [2024] KECA 1696 (KLR)
On appeal from
Principal Magistrate's Court, Mariakani (ELRC)
Mariakani CM ELRC No. E020 of 2021
Jurisdiction invoked
First appeal from the magistrate's court (ELRC cause), heard under the court's appellate jurisdiction

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, "Transport Messenger AU Bondo Limited v Owuor (Appeal E007 of 2024) [2025] KEELRC 446 (KLR)", Case Analysis (2025). ELRC Appeal from Mariakani ELRC Cause No. E020 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/446/eng@2025-02-20

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