Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedELRC Appeal (from Mombasa CMELRC No. E363 of 2021)· [2025] KEELRC 2359 (KLR)

Iteba & 9 others v Cyka Manpower Services Limited (Appeal E029 of 2025) [2025] KEELRC 2359 (KLR)

Employment and Labour Relations Court
8 August 2025
1,973 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court ruled that 'casual' workers become protected employees after a month of work, entitling them to fair process and compensation when terminated.

What this practically means

#

Executive summary

#
This is a first appeal from the judgment of the Magistrates' Court at Mombasa (CMELRC No. E363 of 2021) delivered on 11 February 2025, dismissing ten appellants' claims for terminal dues against a manpower services provider. The appellants alleged employment from various dates between 2010 and 2018 on monthly salaries of Ksh. 21,000 (Ksh. 27,900 for eight of them), terminated on 31 March 2021 without terminal dues. The respondent admitted engaging them on a piece-rate, needs basis under its contract with Tata Magadi Chemical, which ran from 21 June 2018 to 31 March 2021 and expired without renewal. The trial court found the appellants had not proved continuous employment beyond a month and that their engagement never matured into a term contract. On appeal, M. Mbarũ J, re-evaluating the evidence as a first appellate court, held that although the respondent admitted employment on piece-rate terms, it failed to reduce the employment into writing as required under section 18 of the Employment Act. Applying section 37(1) and the reasoning in Kenyatta University v Maina and Keen Kleeners, the court held the appellants became protected employees whose casual treatment offended Article 41 fair labour practices. Their termination without due process was unlawful and unfair under sections 41 and 45. The court set aside the trial judgment and awarded each appellant three months' compensation, one month's notice pay and 33 leave days' pay, with claims for house allowance, public holidays and unlawful deductions failing for want of particulars or justification. Costs of the appeal and trial were awarded to the appellants. Judgment was delivered at Mombasa on 8 August 2025.

Key legal issues

#
01

Status of the appellants' employment

Holding

They were employed on piece-rate/casual basis but became protected under section 37(1)

Reasoning

The respondent admitted engaging the appellants on piece-rate terms from 2018 to 2021 under its Tata Magadi Chemical contract but failed to reduce employment into writing. Casual hiring that exploits labour contrary to Article 41 protections cannot stand; the appellants therefore acquired rights and benefits under section 37.

p. 4
02

Fairness of termination

Holding

Termination without due process was unfair; trial court's contrary finding wrong

Reasoning

Once the appellants were protected employees, sections 41 and 45 required procedural fairness before termination. The expiry of the Tata Magadi contract did not excuse the absence of due process, so the trial court's dismissal of the unfair termination claims was incorrect.

p. 4
03

Terminal dues

Holding

Compensation of 3 months, one month notice pay and 33 leave days awarded; other heads refused

Reasoning

Compensation and notice pay are justified and calculated on last wages. Leave pay is due under section 28, with accrued leave capped at 18 months under section 28(4). House allowance, public holidays and unlawful deductions claims fail for lack of particulars or justification.

p. 4

Legal principles established

#
  • A casual employee who works continuously for an aggregate of not less than one month, or performs work expected to last three months or more, becomes a protected employee under section 37(1) of the Employment Act
  • Employment terminated without due process is unlawful and unfair under sections 41 and 45 of the Employment Act
  • On a first appeal the court re-evaluates the material on record but must bear in mind it did not see or hear the witnesses

Court orders

#
  1. 1.Judgment in Mombasa CMELRC No. E363 of 2021 set aside
  2. 2.Declaration that employment of each appellant was terminated unfairly
  3. 3.Each appellant awarded 3 months' compensation (Ksh. 63,000 each; Ksh. 81,000 for Hassan Milkau; Ksh. 21,000 for Joel Kataka)
  4. 4.Each appellant awarded one month's notice pay (Ksh. 21,000 each; Ksh. 27,900 for Hassan Milkau; Ksh. 63,000 for Gilbert Maloba)
  5. 5.Each appellant awarded 33 leave days' pay (Ksh. 23,100 each; Ksh. 29,700 for Hassan Milkau)
  6. 6.Costs of the appeal and the trial court proceedings to the appellants

Authorities

#

Legislation

  • Employment Actsection 37(1)
  • Employment Actsection 18
  • Employment Actsections 41 and 45
  • Employment Actsection 28 and 28(4)
  • Constitution of KenyaArticle 41

Cases cited (7)

  • CYKA Manpower Services v Makau Nzuki & others
    Appeal E046 of 2024
  • Kenyatta University v Maina
    [2022] KECA 1201 (KLR)
  • Keen Kleeners Limited v Kenya Plantation and Agricultural Workers' Union
    [2021] KECA 352 (KLR)
  • Gachuma Gachru v Maina Kabuchwa
    [2016] eklr
  • Raila Amlo Odinga & Another v IEBC & 2 others
    [2017] eKLR
  • Mohamed Mohamud Jabane v Highlands Butty Tongui Olenja
  • Top Tank Company Limited v Amos Ondiek Wandaye
    [2018] eKLR
On appeal from
Magistrates' Court (ELRC), Mombasa
CMELRC No. E363 of 2021
Jurisdiction invoked
First appellate jurisdiction over the subordinate court (Employment and Labour Relations Court)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Iteba & 9 others v Cyka Manpower Services Limited (Appeal E029 of 2025) [2025] KEELRC 2359 (KLR)", Case Analysis (2025). ELRC Appeal (from Mombasa CMELRC No. E363 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2359/eng@2025-08-08

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