Malivi v Mini Bakers Limited (Appeal E183 of 2022) [2025] KEELRC 526 (KLR)
The bottom line
#A Kenyan court converted a 20-year 'casual' cleaner into a permanent employee and awarded him a year's salary for unfair, unproven termination.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial Magistrate erred in finding that the Appellant was a casual employee not entitled to rights under contract of service
- 2.Whether the trial learned Magistrate erred in finding that the Respondent was fairly terminated
- 3.Whether the trial learned Magistrate erred in dismissing the Appellant's claim without payment of his terminal dues claimed
Key legal issues
#Whether the Appellant remained a casual employee or was converted to a term contract
The trial Magistrate erred; the Appellant was converted to a term employee by operation of law under section 37 of the Employment Act, notwithstanding the muster roll showing intermittent engagement
The Appellant was engaged as a cleaner from 1997 to 2017. The NSSF statement showed monthly remittances from May 2015 to January 2017, inconsistent with casual engagement. The muster roll produced only covered 2016-2017 and alternated between present and off duty; the court read mischief in its production as a device to avoid conversion under section 37. Twenty years of engagement could not sustain casual status.
Whether the termination was substantively and procedurally fair
The Respondent failed to prove the Appellant absconded/deserted duty; the termination was unfair under section 45 and violated section 41 procedural fairness
Once conversion to a term employee was found, section 35 protections applied. The defence of absconding required the employer to demonstrate efforts to contact the employee; no call logs, letters, show cause letter, warning letter or disciplinary hearing were produced. The Respondent therefore failed to prove the reason for termination on a balance of probabilities and breached section 41.
Whether the Appellant was entitled to compensation, notice pay and untaken leave
Maximum 12 months' compensation under section 49 and one month's notice pay under section 35 were awarded; the untaken leave claim failed as time-barred under section 90
Having served 20 years without disciplinary issues and having allegedly been terminated for demanding terminal dues, the maximum 12 months' compensation was justified, plus notice pay. However, the claim was filed in 2019 for termination in January 2017, beyond the 12-month window for continuing injury claims for unpaid leave under section 90 as explained in G4S Security Services.
Legal principles established
#- A casual employee who works for a period or continuous working days amounting in the aggregate to not less than one month, or performs work not reasonably expected to be completed within three months, is by operation of law converted to a term contract under section 37 of the Employment Act
- Where an employer alleges absconding or desertion, the burden shifts to the employer to prove efforts were made to contact the employee without success
- Unpaid leave is a continuing injury which must be claimed within 12 months after cessation thereof under section 90 of the Employment Act
Court orders
#- 1.The order dismissing the appellant's claim in the lower court is substituted with an order allowing the same
- 2.An order awarding the claimant twelve month's salary as compensation for unfair termination of Kshs 180,480/=
- 3.One month's salary in lieu of notice of Kshs 15,040/= (Total Kshs 195,520/=)
- 4.Costs of this Appeal and at the trial court to the Appellant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Milimani Chief Magistrates' Court
- CMEL No. 1393 of 2019
- Jurisdiction invoked
- First appellate jurisdiction over appeals from the Chief Magistrates' Court (Employment and Labour Relations Court appeals division); specific statutory provision not stated in the judgment
Relief refused
#Compensation in lieu of untaken leave (annual leave)
The claim was filed out of time; unpaid leave is a continuing injury which must be claimed within 12 months after cessation thereof under section 90 of the Employment Act
Costs
Costs of this Appeal and at the trial court awarded to the Appellant
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In conclusion the Appeal is found merited and succeeds as follows:a. The order dismissing the appellant's claim in the lower court is substituted with an order allowing the same as follows:
an order awarding the claimant twelve month's salary as compensation for unfair termination......Kshs 180,480/=
To this extent, this Court finds and holds that the trial Magistrate erred in finding that the Appellant was a casual employee not entitled to rights under contract of service as provided under section 37 of the Act.
The Respondent therefore did not prove the reason for termination hence the same was unfair within the meaning of section 45 of the Act.
In this case the Appellant filed the same out of time hence the prayer fails.
Issues in the judgment
#Paragraph numbering is inconsistent: after paragraph 38, the numbering jumps to 13, 14, 31, 32 before resuming at 39-40
Party names are not stated anywhere in the judgment; the parties are referred to only as Appellant and Respondent
The appeal case number and neutral citation of this judgment are not stated in the judgment itself
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Malivi v Mini Bakers Limited (Appeal E183 of 2022) [2025] KEELRC 526 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/526/eng@2025-02-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.