Omondi v Vishva Builders Limited (Appeal E052 of 2022) [2025] KEELRC 1633 (KLR)
The bottom line
#Kenya's Employment Court confirmed that casual workers can win wage claims, but only with strong proof of dismissal can they claim unfair termination compensation.
What this practically means
#Executive summary
#Key legal issues
#Whether the Appellant was an employee of the Respondent
The trial court erred in finding the Appellant was not an employee; the Respondent's own pleadings and documents admitted employment, though on casual basis
The Respondent's defence admitted the Claimant was at one time its employee assigned to the Workshop Department as a casual labourer, and admitted he was injured in the course of employment. The Respondent also produced muster roll, medical treatment and payment records, work injury forms and a salary voucher, all proving employment. The real issue was the nature of the employment, not its existence.
Whether the Appellant's employment was unfairly terminated
No; the Appellant did not prove dismissal on 11th December 2017, and as a casual employee the sections 41, 43 and 45 protections did not apply
The Muster Roll showed the Appellant on treatment from 13th November and back at work from 18th to 21st December 2017, contradicting his claim of dismissal on 11th December. Continuous engagement from June to December 2017 on weekly pay did not convert his casual employment to regular terms, so the procedural and substantive fairness requirements did not apply.
Whether the Appellant is entitled to the reliefs sought
Partially; awarded 12 days' leave pay (Kshs. 6,857.40) and underpayment (Kshs. 26,746.20); declined notice pay, compensation for unfair termination and house allowance
Having not proved unfair termination, the Appellant was not entitled to notice pay or compensation. Leave under the Building and Construction Industry Order was 2 days per completed month, entitling him to 12 days at the general labourer daily rate of Kshs. 571.45. He was paid Kshs. 400 daily against the prescribed Kshs. 571.45, giving an underpayment award. House allowance was already included in the daily wage.
Legal principles established
#- On a first appeal the court re-evaluates the evidence and draws its own conclusions, bearing in mind it did not hear the witnesses
- Continuous engagement of a casual worker over several months does not convert the employment to permanent or regular terms under section 37 of the Employment Act unless agreed in writing
Court orders
#- 1.Set aside the decision of the trial court dismissing the Appellant's claim in its entirety
- 2.Declared that the Appellant did not prove that his employment was unfairly terminated by the Respondent
- 3.Declined compensation for unfair termination
- 4.Declined pay in lieu of notice
- 5.Awarded pay in lieu of annual leave of Kshs. 6,857.40
- 6.Declined the prayer for house allowance, the Appellant having been paid a daily wage inclusive of house allowance
- 7.Awarded Kshs. 26,746.20 on account of underpayment of wages
- 8.Awarded the Appellant costs in the trial court
- On appeal from
- Chief Magistrates Court at Eldoret
- Jurisdiction invoked
- First appellate jurisdiction over the Chief Magistrates Court (Employment and Labour Relations Court Act; the judgment does not cite a specific provision)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Omondi v Vishva Builders Limited (Appeal E052 of 2022) [2025] KEELRC 1633 (KLR)", Case Analysis (2025). Memorandum of Appeal dated 30th November, 2022 (Chief Magistrates Court at Eldoret appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1633/eng@2025-05-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.