ISL Kenya Limited v Ndutu (Employment and Labour Relations Appeal E001 of 2022) [2025] KEELRC 1638 (KLR)
The bottom line
#A Kenyan court threw out a worker's unfair dismissal claim because he couldn't prove the exact date he was fired, despite records showing continued work.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent was a casual employee
Having worked continuously for more than a year, the Respondent was no longer a casual employee; his contract had converted under section 37 of the Employment Act.
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) deems the contract of a casual employee who works for continuous working days amounting to not less than one month to be one where wages are paid monthly. The Respondent worked from 2015 to February 2017, well beyond the conversion threshold, so the Appellant was obliged to treat the termination as that of a regular employee.
Whether the Respondent proved unfair termination
No. The Respondent did not prove that his employment was terminated on 23rd February 2017; records show he worked that day and again from 6th to 17th March 2017 without hindrance.
The Respondent claimed summary dismissal on 23rd February 2017, yet DW1 testified he worked the full day with overtime on that date, and wage records show he worked from 6th to 17th March 2017 earning full days and overtime. The Respondent gave no explanation of how the termination occurred or how he could return to work after alleged dismissal. The trial court therefore erred in finding unfair termination.
Whether the trial court's awards were justified
The awards of notice pay and 12 months' compensation were set aside as they depended on the failed unfair termination claim; the order for a certificate of service was upheld.
Having found no proof of summary dismissal, the Respondent was not entitled to notice pay or compensation for unfair termination, and those two awards fell. However, the Appellant's own witness confirmed no certificate of service had been issued, so that order of the trial court was confirmed and sustained. Costs were left to each party.
Legal principles established
#- 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
- Casual employment converts to a monthly term contract where the employee works continuously for the equivalent of not less than one month (section 37 Employment Act)
- A first appellate court must reconsider and evaluate the evidence afresh while exercising caution as it did not see or hear the witnesses
Court orders
#- 1.The finding of the trial court that the Respondent's employment was unfairly terminated by the Appellant is set aside and replaced with an order that the Respondent did not prove that his employment was unfairly terminated by the Appellant
- 2.The Respondent's claim in the Memorandum of Claim is dismissed
- 3.The order for issuance of certificate of service by the Appellant to the Respondent is upheld
- 4.Each party shall bear its costs both in the lower court and in the appeal
- On appeal from
- Principal Magistrate's Court at Mavoko
- PMCC No. 498 of 2013 (Mavoko ELRC Cause No. 36 of 2018)
- Jurisdiction invoked
- First appellate jurisdiction over the Principal Magistrate's Court (ELRC appeal from PMCC No. 498 of 2013)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "ISL Kenya Limited v Ndutu (Employment and Labour Relations Appeal E001 of 2022) [2025] KEELRC 1638 (KLR)", Case Analysis (2025). Mavoko ELRC Appeal (from Mavoko PMCC No. 498 of 2013 / ELRC Cause No. 36 of 2018, Muthiani Ndutu v ISL Kenya Limited). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1638/eng@2025-05-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.