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ELRCPartially AllowedNot stated in the judgment· [2025] KEELRC 1439 (KLR)

Equator Bottlers Limited v Sidede (Appeal E046 of 2024) [2025] KEELRC 1439 (KLR)

Employment and Labour Relations Court
15 May 2025
2,611 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court confirmed casual workers become permanent after continuous service, but slashed parts of the award, including leave beyond three years.

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 at Nairobi against the judgment of the Magistrate's Court at Winam delivered on 15th August 2024, which had found that the Respondent's casual employment converted to permanent status under section 37 of the Employment Act and that his summary dismissal was unlawful, awarding notice pay of Kshs. 18,000/-, twelve months' compensation of Kshs. 216,000/-, benefits in lieu of service of Kshs. 36,000/-, leave allowance of Kshs. 72,000/-, a certificate of service, plus costs and interest. The Appellant, represented by written submissions, challenged the conversion finding, the alien award of 'benefits in lieu of service', the unproven salary of Kshs. 18,000/-, the unsupported leave claim, the absence of evidence of termination, and the unexplained award of twelve months' compensation. The Court, applying its first appellate duty to re-evaluate the evidence, upheld the conversion of the employment under sections 37 and 35 and the finding of unfair termination, there being no disciplinary process, notice or hearing. However, it recalculated the monthly salary from the Appellant's stated daily wage of Kshs. 653.10 to Kshs. 16,980.60, reduced compensation to Kshs. 203,767.20, reversed the award of benefits in lieu of service entirely as unknown to law, and limited leave dues to three years in view of the limitation period under section 90, awarding Kshs. 50,941.80. The Magistrate's decision was set aside and substituted with judgment allowing the claim to that extent, with costs and interest in the trial court but no order on the costs of the appeal.

Key legal issues

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01

Conversion of casual employment to term/monthly contract

Holding

The Respondent's continuous service converted his contract under section 37 and 35 of the Employment Act; the Magistrate did not err in so holding, and no specific plea of conversion was necessary given the pleadings as to monthly salary.

Reasoning

Section 37(1) deems a casual employee who works for the equivalent of not less than one month, or performs work not completable within three months, to be employed on monthly wages. The Respondent's pleadings asserted a monthly salary while the Appellant asserted a consolidated salary, giving the Magistrate a basis to find entitlement to a monthly salary.

p. 5
02

Lawfulness of the termination

Holding

The termination was unfair and unlawful: no disciplinary action, no notice and no hearing were afforded to the Respondent.

Reasoning

The Appellant led no evidence justifying the termination and took no disciplinary steps. The Magistrate's finding of unlawful dismissal stood, and the 12 months' compensation awarded was left undisturbed in substance.

p. 5
03

Award of benefits in lieu of service

Holding

The award was reversed in its entirety as it is not provided for in law and service pay was not payable to the Respondent.

Reasoning

Service pay is payable under section 35 of the Employment Act; 'benefits in lieu of service' is an alien head with no statutory foundation, so the Magistrate lacked a basis for the award.

p. 5
04

Correct monthly salary multiplicand

Holding

The figure of Kshs. 18,000/- was erroneous; the proper monthly salary computed from the Appellant's stated daily wage of Kshs. 653.10 is Kshs. 16,980.60.

Reasoning

Although the pleadings gave a basis for finding a monthly salary, the sum adopted as multiplicand was not established. Using the Appellant's own daily wage figure aggregated monthly yields Kshs. 16,980.60; the notice award and the 12 months' compensation were recalculated on that basis.

p. 5

Legal principles established

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  • A casual employee whose service meets the thresholds in section 37(1) of the Employment Act is deemed to have a contract with monthly wages under section 35(1)(c).
  • On a first appeal, the court must reconsider and re-evaluate the evidence and draw its own conclusions while allowing for the fact that it neither saw nor heard the witnesses.
  • Where monthly salary cannot be established, the court may compute it from the daily wage multiplicand supplied by the employer.
  • Employment claims are subject to the three-year limitation period under section 90 of the Employment Act.

Court orders

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  1. 1.A declaration that the termination of the Respondent was unfair and unlawful
  2. 2.Compensation for the unlawful and unfair dismissal equivalent to 12 months salary - Kshs. 16,980.60 x 12 = Kshs. 203,767.20
  3. 3.Annual leave dues for 3 years - Kshs. 50,941.80
  4. 4.Certificate of service
  5. 5.Costs and interest of the claim in the Magistrate's Court
  6. 6.No order on the costs for the appeal
On appeal from
Magistrate's Court at Winam
Jurisdiction invoked
First appellate jurisdiction over appeals from the Magistrate's Court in employment matters

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, "Equator Bottlers Limited v Sidede (Appeal E046 of 2024) [2025] KEELRC 1439 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1439/eng@2025-05-15

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