Vishva Builders Limited v Wekulo (Employment and Labour Relations Appeal E001 of 2021) [2025] KEELRC 2077 (KLR)
The bottom line
#Kenya's Employment Court confirmed long-serving workers are not casual labourers, but employees must still prove unfair termination to win compensation.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent was a casual employee or piece rate worker
He was neither; he was in continuous employment from 2005 to 2019, as shown by NSSF remittances from May 2013 to February 2019 and paid leave from 2013 to 2018
The court distinguished casual employment (contract not exceeding 24 hours, paid at day's end) from piece rate work (pay ascertained by work performed, payable monthly or on completion). The Appellant's own records - continuous NSSF remittances and annual leave payments for 2013 to 2018 - and DW1's cross-examination admissions established continuous service, defeating the casual labourer defence.
Whether the Respondent's employment was unfairly terminated
Unfair termination was not proved; there was termination not based on discipline, but the Respondent did not explain how his employment was terminated
The record did not show how the employment ended; the Appellant apparently referred the Respondent to another company. The Respondent gave no explanation of the manner of termination, so the burden of proving unfair termination was not discharged. However, there was no evidence of notice, entitling the Respondent to pay in lieu of notice.
Entitlement to pay in lieu of notice
The Respondent was entitled to 2 months' pay in lieu of notice (Kshs. 36,000) under the Building and Construction Industry Order as incorporated by section 48(1) of the Labour Institutions Act
No notice was given before termination - RW1 gave conflicting evidence and no notice document was produced. Having worked more than 4 years continuously, the wages order entitled him to 2 months' notice; wages order terms constitute minimum contractual terms that cannot be varied by agreement, so the court awarded 2 months' pay calculated at Kshs. 4,500 per week.
Trial court's award of all prayers as prayed
The trial judgment was set aside because it was not based on the evidence and failed to make individual findings on each prayer
The court reiterated that all prayers in an employment dispute are subject to proof; terminal benefits like leave, salary for days worked and overtime are payable on proof regardless of the mode of termination. A blanket award of all prayers as claimed, without analyzing each item against the evidence, is erroneous.
Legal principles established
#- A casual employee is one whose engagement provides for payment at the end of each day and who is not engaged for a longer period than twenty-four hours at a time; a piece rate worker must be paid at the end of each month or on completion of the work.
- Wages orders constitute minimum terms of employment which may not be varied by agreement and apply notwithstanding contrary contract terms.
- Every prayer in an employment dispute must be specifically proved and separately determined by the court, irrespective of the finding on unfair termination.
Court orders
#- 1.A finding that the Respondent did not prove unfair termination of his employment
- 2.The prayer for compensation for unfair termination is dismissed
- 3.The Respondent is awarded 2 months' pay in lieu of notice, Kshs. 36,000
- 4.The prayer for unpaid salary for March, 2019 is dismissed
- 5.The prayer for service pay is dismissed
- 6.The Appellant to issue a certificate of service to the Respondent
- 7.Each party shall bear its own costs both in the trial court and in the appeal
- On appeal from
- Magistrates' Court (ELRC subordinate court)
- Not stated
- Jurisdiction invoked
- First appellate jurisdiction over an employment claim decided by the subordinate court (Memorandum of Appeal dated 5th February, 2021)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Vishva Builders Limited v Wekulo (Employment and Labour Relations Appeal E001 of 2021) [2025] KEELRC 2077 (KLR)", Case Analysis (2025). Memorandum of Appeal dated 5th February, 2021 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2077/eng@2025-07-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.