Kimanthu & 3 others v Excel Chemicals Limited (Appeal E069 of 2020) [2025] KEELRC 1572 (KLR)
The bottom line
#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 claimants were casual employees and whether the casual employment converted to a contract of service subject to minimum terms and conditions of service as envisaged in section 37 of the Employment Act
- 2.Whether the trial court erred in placing the burden of proving conversion of employment on the appellants
- 3.Whether the trial court erred in failing to award notice pay, leave pay, house allowance, overtime and service gratuity
- 4.Whether the trial court erred in failing to award costs of the subordinate court suit (cross-appeal)
Key legal issues
#Whether the appellants' casual employment converted to a term contract under section 37 of the Employment Act
The casual employment did not convert; both sides testified the appellants worked as casuals only when work was available, and continuous service equivalent to the statutory threshold was not established.
The court found the parties' evidence mutually established that the appellants were engaged only when work was available and paid Kshs. 650 daily. The appellants, some working intermittently from 1999 to 2019, did not plead or prove particulars of continuous working days or aggregate service meeting the section 37 thresholds. The trial court's finding that they remained casual employees was therefore not erroneous.
Burden of proof regarding conversion and special damages
The burden of proving conversion and the special damages claimed rested on the appellants; section 74 does not shift that burden to the employer.
Following authority, the court held that the employer's record-keeping duty under section 74 concerns records that must be kept, not automatic default consequences for non-production in court; an employee must serve a notice to produce under the Evidence Act. Since the appellants pleaded claims inconsistent with casual employment and proved nothing, the trial court correctly declined the reliefs.
Whether the cross-appeal on costs should be allowed
The cross-appeal was not granted; the trial court's order that there be no order as to costs was upheld in light of the practical circumstances of casual employees.
Although costs normally follow the event and the respondent did not contest the point, the court weighed the practical difficulty of recovering costs from casual employees and declined to make orders escalating unrecoverable costs, leaving the trial court's costs order intact.
Legal principles established
#- An employee alleging conversion of casual employment to a term contract under section 37 of the Employment Act bears the burden of proving continuous service or aggregate days worked, on a balance of probabilities.
- The employer's statutory duty to keep employment records under section 74 does not shift the burden of proof to the employer or entitle an employee to judgment by default of production of records.
- In a first appeal, the court re-evaluates the evidence but will not interfere with trial court findings absent misdirection in a material respect.
Court orders
#- 1.The appeal is dismissed and the trial Court's judgment and decree upheld
- 2.Each party to bear own costs of the appeal and cross-appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Milimani Chief Magistrate's Court (CMELC No. 403 of 2019)
- 403 of 2019
- Jurisdiction invoked
- Appeal against decision of the trial Magistrate under the Employment Act, Cap 226 Laws of Kenya
Relief refused
#Setting aside of the trial court's judgment and award of notice pay, leave pay, damages for wrongful termination, overtime and service gratuity
The appellants failed to prove conversion of their casual employment under section 37 of the Employment Act and did not discharge the burden of proving the special damages claimed
Costs of the subordinate court suit to the respondent (cross-appeal)
The court considered the practical consequences of realizing costs against casual employees and declined to disturb the trial court's order on costs
Costs
Each party to bear own costs of the appeal and cross-appeal
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.
The aggregate days worked or continuous service to justify conversion of their respective service to one subject to minimum terms and conditions of service in the Act and as envisaged in section 37 of the Act has not been established at all.
the employer's duty to keep employee records does not amount to shifting of the burden of prove to the employer.
The appeal is dismissed andthe trial Court's judgment and decree upheld.
Each party to bear own costs of the appeal and cross-appeal.
Issues in the judgment
#Appellants' employment periods are inconsistently recorded: they 'worked for the respondent from 01.11.2016 up to 12.01.2019' per the trial judgment, while on appeal they testified they worked 'between 1999-2019; 2003-2019; unstated period; and, 2012-2019, respectively.'
Typographical error in the final orders: 'andthe' appears as one word.
Trial judgment date stated as delivered 25.09.2020 but elsewhere referred to as 'Judgment dated 30.09.2020'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kimanthu & 3 others v Excel Chemicals Limited (Appeal E069 of 2020) [2025] KEELRC 1572 (KLR)", Case Analysis (2025). Appeal from Milimani CMELC No. 403 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1572/eng@2025-05-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.