ISL Kenya Limited v Nzau (Employment and Labour Relations Appeal 2 of 2020) [2025] KEELRC 904 (KLR)
The bottom line
#A Kenyan court confirmed that casual workers who work over a month become regular employees, and employers claiming desertion must prove they tried to reach the worker.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent was a casual employee
No - having worked continuously for more than a year, his contract was deemed monthly under section 37 of the Employment Act.
Section 2 defines a casual employee as one paid at the end of each day and not engaged for longer than twenty-four hours at a time. Section 37(1) provides that where a casual employee works for a period equivalent to not less than one month, the contract is deemed to be one where wages are paid monthly. The Respondent worked continuously for over a year, so he was a regular employee entitled to full statutory protection on termination.
Whether the Respondent was unfairly dismissed
Yes - the appellant failed to prove desertion and made no inquiries into the Respondent's absence before replacing him.
Both parties agreed the Respondent was last at work on 23rd February 2017. The Respondent said work stopped for shortage of raw materials and he was told on return that he had been fired, corroborated by the appellant's HR witness. The law requires an employer alleging desertion to demonstrate efforts to contact the employee and put them on notice of contemplated termination. The appellant made no inquiries, so the termination was procedurally and substantively unfair.
Whether the trial court's awards should be interfered with
No - the appellant failed to discharge its evidentiary burden on leave, public holidays and underpayment; the awards were not shown to rest on wrong principles.
An appellate court interferes with an award only where wrong legal principles were applied, irrelevant factors considered, relevant ones ignored, or the award is inordinately low or high. The appellant did not contest notice pay. Its claim that it paid leave annually was unsupported by records, which section 10(6) and (7) of the Employment Act required it to keep and produce, shifting the burden of proof to it. The same reasoning applied to public holidays and underpayment.
Legal principles established
#- A casual employee who works continuously for more than a month is deemed to be employed on monthly terms under section 37 of the Employment Act and ceases to be a casual employee.
- An employer alleging desertion must show efforts made to reach the employee and put them on notice that termination on that ground is under consideration.
- Where an employer fails to produce written particulars or records required under section 10 of the Employment Act, the burden of proving or disproving the alleged term of employment lies on the employer.
- A first appellate court must reconsider and evaluate the evidence afresh while making allowance for not having seen or heard the witnesses.
Court orders
#- 1.The appeal is dismissed with costs to the Respondent
- 2.The judgment and decree of the trial magistrate (award of Kshs. 269,893.26 plus costs and interest, and issuance of a certificate of service) stands
- On appeal from
- Principal Magistrate's Court, Mavoko
- Mavoko MC ELRC Cause 21 of 2018 – James Kioko Nzau v ISL Kenya Limited
- Jurisdiction invoked
- First appellate jurisdiction over the magistrate's court in an employment cause
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "ISL Kenya Limited v Nzau (Employment and Labour Relations Appeal 2 of 2020) [2025] KEELRC 904 (KLR)", Case Analysis (2025). Mavoko MC ELRC Appeal (from Mavoko MC ELRC Cause 21 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/904/eng@2025-03-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.