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ELRCPartially AllowedNot stated in judgment· [2025] KEELRC 1955 (KLR)

Okwaro v County Gvernment of Taita Taveta (Cause 11 of 2016) [2025] KEELRC 1955 (KLR)

Employment and Labour Relations Court
30 June 2025
MMM. MBARŨ
2,736 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that keeping a worker on 'casual' terms for over five years is illegal, and awarded her compensation for unfair termination.

What this practically means

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Executive summary

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The claimant, employed by the respondent (formerly Voi Municipal Council) on 2 February 2010 as a casual supply chain management/procurement officer, was terminated by a notice dated 17 April 2015 on the stated ground of an EACC investigation. She sued in January 2016 seeking a declaration of unlawful termination, reinstatement, salary arrears, leave pay and costs. She testified that no EACC investigation against her existed and that she was neither heard nor paid terminal dues; the respondent's own witness conceded the termination was irregular and that section 37 of the Employment Act had not been applied to her employment. The court held that despite working continuously for over five years on monthly wages while performing procurement duties, the claimant was retained on casual terms contrary to sections 2 and 37 of the Employment Act, which protected her. Section 41's procedural requirements were mandatory and were not followed; the alleged EACC investigation was disproved, and even if it existed, due process was required. Reinstatement was refused because termination occurred in 2015 and the claimant was recalled in July 2022 on casual terms - a recall the court branded an abuse of process and an unfair labour practice. The court awarded ten months' gross salary (Ksh.297,000) as compensation for unfair termination, and Ksh.32,670 for 33 days' accrued leave (leave not accruing beyond 18 months under section 28(4)). Claims for underpayments and post-termination salary were declined. Costs were awarded to the claimant. Judgment delivered at Mombasa on 30 June 2025.

Key legal issues

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01

Casual employment conversion under section 37

Holding

Working continuously for over five years on monthly wages while performing procurement duties converted the casual engagement into protected employment under sections 2 and 37 of the Employment Act

Reasoning

The claimant worked from February 2010 to April 2015 without confirmation, was paid monthly rather than daily, performed substantive supply chain duties and received training. Under section 37 and the cited Court of Appeal authority, an employer cannot keep an employee on casual terms indefinitely; she acquired the rights and benefits of a permanent employee.

p. 4
02

Procedural fairness in termination

Holding

The termination was unfair because the claimant received no notice, no hearing and no representation, contrary to the mandatory requirements of section 41

Reasoning

The respondent terminated employment on the alleged ground of EACC investigation, which the claimant disproved; even if true, section 41 requires explanation of grounds in a language understood, a representative, and hearing of representations. The termination notice was also issued by an officer lacking authority over her department.

p. 5
03

Remedy of reinstatement

Holding

Reinstatement was refused; recall to work on casual terms is not reinstatement, and the intervening period is compensable

Reasoning

Although the recall to work on casual terms while performing procurement duties was an abuse of process and unfair labour practice, reinstatement was impracticable given the 2015 termination and 2022 recall; the court instead awarded ten months' gross salary as compensation.

p. 5

Legal principles established

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  • A casual employee engaged continuously for more than a day, and paid a monthly salary, is protected under section 37 of the Employment Act and deemed to have terms of service
  • Before terminating employment for any reason, including gross misconduct, an employer must comply with the mandatory procedural requirements of section 41 of the Employment Act
  • Annual leave cannot accrue beyond 18 months under section 28(4) of the Employment Act

Court orders

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  1. 1.Declaration that the employment was terminated unfairly
  2. 2.Compensation of Ksh.297,000 (10 months' gross salary)
  3. 3.Leave pay of Ksh.32,670
  4. 4.Costs of the suit to the claimant
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance claim)

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, "Okwaro v County Gvernment of Taita Taveta (Cause 11 of 2016) [2025] KEELRC 1955 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1955/eng@2025-06-30

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.