Kenya Union of Commercial and Food Allied Workers v Sai Electrical and Hardware Limited (Employment and Labour Relations Cause E020 of 2022) [2025] KEELRC 1760 (KLR)
The bottom line
#A Kenyan court ruled that casual workers become full employees after two years, and unions can represent members even without a recognition agreement.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant union had locus standi to represent the Grievant without a recognition agreement
The Claimant had locus standi; membership, not recognition, confers entitlement to representation
Section 52 of the Labour Relations Act permits direct payment of union dues by members. The Grievant testified he was a union member paying dues directly. The court held that recognition is for collective bargaining while membership is for representation, so the union could sue on his behalf without a recognition agreement or engagement with the Respondent.
Whether the Grievant was a casual employee and whether an employment relationship existed
The Grievant was not a casual; two years of continuous service converted his terms to a monthly contract under section 37 of the Employment Act
RW1 confirmed the Grievant worked for the Respondent from 5th March 2020 to 8th March 2022. Applying the statutory definition of casual employment in section 2 and the conversion provision in section 37, the court held he was a monthly contract employee entitled to procedural protection.
Whether the termination was unfair
The termination was unfair - no valid reason and no hearing
The Respondent alleged the Grievant absconded but produced no records. Citing section 44(4) and the authorities on desertion, the court held the employer bore the burden of proving abscondment and of making efforts to contact the employee. Neither a valid ground nor an opportunity to be heard was proved, so the termination was substantively and procedurally unfair under sections 41, 43 and 45(2).
What remedies were due to the Grievant
Notice pay, leave, public holidays, severance as redundancy pay, underpayments and 2 months' compensation awarded; overtime declined for lack of proof
The court awarded notice pay under sections 35(1) and 49(1), leave under section 28, public holiday pay under section 10(3), severance at 15 days per year treating the termination as redundancy, underpayments based on the Regulation of Wages (General) (Amendment) Order, 2018 which the Respondent did not deny, and 2 months' compensation under section 49(4). Overtime was not proved.
Legal principles established
#- Membership of a trade union is distinct from recognition; an employee who is a union member is entitled to representation even without a recognition agreement between the union and the employer
- A casual employee engaged continuously becomes a monthly contract employee by operation of section 37 of the Employment Act, entitled to procedural fairness before termination
- An employer alleging abscondment/desertion bears the burden of proving it and of taking the steps in section 44(4)
Court orders
#- 1.Respondent to pay the Grievant pay in lieu of notice of Kshs. 11,700
- 2.Respondent to pay annual leave for 42 days at Kshs. 20,160
- 3.Respondent to pay public holidays worked at Kshs. 10,800
- 4.Respondent to pay severance pay for 2 years at 15 days per year worked, Kshs. 14,400
- 5.Respondent to pay underpayments of Kshs. 64,800
- 6.Respondent to pay compensation of 2 months' salary at Kshs. 28,050
- 7.Respondent to pay the Claimant's costs assessed at Kshs. 50,000
- Jurisdiction invoked
- First-instance employment and labour relations jurisdiction of the Employment and Labour Relations Court under the Employment Act and Labour Relations Act (specific enabling provision not stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Commercial and Food Allied Workers v Sai Electrical and Hardware Limited (Employment and Labour Relations Cause E020 of 2022) [2025] KEELRC 1760 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1760/eng@2025-06-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.