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ELRCDismissedMavoko MC ELRC Appeal (from Mavoko MC ELRC Cause 21 of 2018)· [2025] KEELRC 904 (KLR)

ISL Kenya Limited v Nzau (Employment and Labour Relations Appeal 2 of 2020) [2025] KEELRC 904 (KLR)

Employment and Labour Relations Court
21 March 2025
4,195 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a first appeal to the Employment and Labour Relations Court against the judgment of Honourable Bernard Kasavuli, PM delivered on 22nd February 2021 in Mavoko MC ELRC Cause 21 of 2018, in which the Respondent, James Kioko Nzau, was awarded Kshs. 269,893.26 in terminal dues and damages for unfair dismissal by ISL Kenya Limited. The Appellant raised thirteen grounds contending that the Respondent was a casual worker who absconded duty on 23rd February 2017, and that the awards for notice, leave, public holidays and underpayment were unsupported by evidence. The court framed three issues: the Respondent's employment status, the fairness of the dismissal, and whether the awards warranted appellate interference. Holding that the Respondent had worked continuously for over a year, the court found he had ceased to be a casual employee under sections 2 and 37 of the Employment Act. On desertion, the court applied authority requiring an employer alleging desertion to show efforts to contact the employee and give notice of contemplated termination; the Appellant's own HR witness admitted no inquiries were made, so the dismissal was unfair. On quantum, the court held that the failure to produce employment records required under section 10(6) and (7) of the Employment Act placed the burden of proof on the employer, and found no basis to disturb the awards. The appeal was dismissed with costs to the Respondent. Note: only the Appellant's submissions were on the court file.

Key legal issues

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01

Whether the Respondent was a casual employee

Holding

No - having worked continuously for more than a year, his contract was deemed monthly under section 37 of the Employment Act.

Reasoning

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.

p. 7
02

Whether the Respondent was unfairly dismissed

Holding

Yes - the appellant failed to prove desertion and made no inquiries into the Respondent's absence before replacing him.

Reasoning

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.

p. 8
03

Whether the trial court's awards should be interfered with

Holding

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.

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 1.The appeal is dismissed with costs to the Respondent
  2. 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

Authorities

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Legislation

  • Employment Actsection 2 (definition of casual employee)
  • Employment Actsection 37
  • Employment Actsection 35(1)(c)
  • Employment Actsection 10(1), 10(3), 10(6), 10(7)
  • Employment Actsection 87
  • Evidence Actsections 107, 108, 109

Cases cited (17)

  • Boniface Nkubi Karagania v Protective Custody Limited
    [2019] eKLR
  • SABC v CCMA and others
    (200) 8 BLLR 693 (LAC)
  • SACWU v DYASI
    (2007) 7D LLR 731 (LAL)
  • James Kiprop Tarus v Riley Falcon Security Services Ltd
    [2017] eKLR
  • Patrick Mutinda Mutuku v Ashut Engineering Ltd
    [2016] eKLR
  • Reef Hotel Limited v Josephine Chivatsi
    [2021] eKLR
  • Rogoli Ole Manadiegi v General Cargo Services Limited
    [2016] eKLR
  • Geofirey Wabwire Henry v Auto Hauliers [K] Limited
    [2019] eKLR
  • Ol Pajeta Ranching Ltd v David Wanjau Muhoro
    [2017] eKLR
  • Selle & another –vs- Associated Motor Boat Co. Ltd & others
    [1968] EA 123
  • Ronald Nyambu Daudi v Tornado Carriers Limited
    [2019] eKLR
  • Evans Ochieng Oluoch v Njimia Pharmaceuticals Limited
    [2016] eKLR
  • Richard Maingi vs Wells Fargo Limited
    [2017] eKLR
  • Chispine Onguso Okinyi vs Devki Steel Mills Limited
    [2018] eKLR
  • Albanus Mbuithi Mutiso v Fresh Breeze Limited
    Cause No.851 of 2017
  • Catholic Diocese of Kisumu v Tete
    [2004] eKLR
  • Douglas Kalafa Ombeva v David Ngama
    [2023] eKLR
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

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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, "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.