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ELRCPartially AllowedMemorandum of Appeal dated 30th November, 2022 (Chief Magistrates Court at Eldoret appeal)· [2025] KEELRC 1633 (KLR)

Omondi v Vishva Builders Limited (Appeal E052 of 2022) [2025] KEELRC 1633 (KLR)

Employment and Labour Relations Court
29 May 2025
3,316 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This was a first appeal to the Employment and Labour Relations Court at Eldoret against the judgment of the Honourable R. Odenyo, Senior Principal Magistrate, delivered on 24th November 2022, dismissing the Appellant's claim for unfair and unlawful termination. The Appellant claimed he was employed as a welder from 19th February 2017 and dismissed on 11th December 2017 after sustaining a workplace injury, seeking notice pay, compensation for unfair termination, leave dues, underpayment, house allowance and exemplary damages. The Respondent maintained he was a casual employee who deserted duty. The appeal was disposed of by written submissions. The Court, applying the first-appeal duty to re-evaluate evidence, held that the trial court erred in finding the Appellant was not an employee: the Respondent's own defence and documents admitted employment, albeit on casual basis. However, the Muster Roll showed the Appellant was on treatment and back at work in December 2017, disproving dismissal on 11th December 2017. The Court further held that continuous casual engagement from June to December 2017 did not convert the employment to regular terms under section 37 of the Employment Act, so the unfair termination protections of sections 41, 43 and 45 did not apply. The Court set aside the trial court's dismissal in its entirety, substituted an award of Kshs. 6,857.40 in leave pay and Kshs. 26,746.20 in underpayment, declined notice pay, unfair termination compensation and house allowance, awarded the Appellant costs in the trial court, with each party bearing its own costs of the appeal.

Key legal issues

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01

Whether the Appellant was an employee of the Respondent

Holding

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

Reasoning

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.

p. 6
02

Whether the Appellant's employment was unfairly terminated

Holding

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

Reasoning

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.

p. 7
03

Whether the Appellant is entitled to the reliefs sought

Holding

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

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 1.Set aside the decision of the trial court dismissing the Appellant's claim in its entirety
  2. 2.Declared that the Appellant did not prove that his employment was unfairly terminated by the Respondent
  3. 3.Declined compensation for unfair termination
  4. 4.Declined pay in lieu of notice
  5. 5.Awarded pay in lieu of annual leave of Kshs. 6,857.40
  6. 6.Declined the prayer for house allowance, the Appellant having been paid a daily wage inclusive of house allowance
  7. 7.Awarded Kshs. 26,746.20 on account of underpayment of wages
  8. 8.Awarded the Appellant costs in the trial court

Authorities

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Legislation

  • Employment Actsections 41(1), 44(4), 45(2), 43, 36, 49(1)(c), 28, 18, 37, 35(1)(b)
  • Constitution of KenyaArticle 41
  • Labour Institutions (Building and Construction Industry) (Wages) Order2012 Order; LN No. 117/2015; LN No. 112/2017
  • Work Injury Benefits Act

Cases cited (10)

  • Selle & Another v Associated Motor Boat Company Ltd & Others
    [1968] EA 123
  • Rebecca Ann Maina and 2 others v Jomo Kenyatta University of Agriculture and Technology
    [2014] eKLR
  • Donald Odeke v Fidelity Security Limited
    [2012] eKLR
  • James Okeyo v Maskant Flower Limited
    [2015] eKLR
  • Godfrey Anjere v Unique Suppliers Limited
    [2015] eKLR
  • Martin Juma Kundu v Kemu Salt Packers Production Limited
    [2016] eKLR
  • BOC Kenya Limited v Amos Manoa Erastus
    [2017] eKLR
  • Charles Kariuki Mwangi v Intersecurity Services Limited
    [2018] eKLR
  • Phillip Waweru Gitu v Straight Security Services Limited
    [2019] eKLR
  • Wilfred K. Onyango v DHL Excel Supply Chain Kenya Limited
    [2017] eKLR
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

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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, "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.