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ELRCPartially AllowedEmployment and Labour Relations Court at Nairobi, Memorandum of Claim dated 9th December 2016· [2025] KEELRC 2611 (KLR)

Mulima v National Cement Company Limited (Cause 80 of 2017) [2025] KEELRC 2611 (KLR)

Employment and Labour Relations Court
26 September 2025
JKJ. W. Keli
2,857 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that a 'casual labourer' hired for over three months becomes a permanent-contract employee, and firing him without notice or hearing was unlawful.

What this practically means

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Executive summary

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The claimant sued his former employer seeking declarations that his dismissal was unlawful, unfair and inhumane, payment of terminal dues of Kshs 323,726, interest and costs. He alleged he was employed as a Count and Belt Accountant at Kshs 18,237 per month from September 2014 and was in September 2015 denied access to the premises on account of a workplace injury and summarily dismissed without notice or hearing. The respondent admitted employment but contended the claimant was a casual labourer paid Kshs 484.30 daily, that his monthly pay was inclusive of overtime, that he was never in continuous employment for over a year, and that he deserted his duties. The court framed three issues: the nature of the employment relationship, whether termination was unfair, and entitlement to relief. Holding that the claimant worked beyond three months, was paid monthly with NSSF, NHIF and PAYE deductions, the court found the engagement converted to a contractual one under section 37 of the Employment Act. The employer's absconding defence failed under section 43; no valid reason or fair procedure under sections 41 and 45 was proved, and injury is not a valid ground for termination. The court declared the claimant a contractual employee and the termination unlawful and unfair, awarding notice pay of Kshs 18,237, leave pay of Kshs 12,765.90 and three months' gross salary (Kshs 54,711) as compensation, with interest, certificates of service, costs, and a 30-day stay. Claims for house allowance and overtime were disallowed.

Key legal issues

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01

Nature of employment relationship

Holding

The claimant was a contractual employee, not a casual labourer

Reasoning

Although engaged at a daily wage rate, the claimant worked for more than 24 hours and more than three months, was paid end month by bank transfer, and suffered NSSF, NHIF and PAYE deductions. Under section 37 of the Employment Act, casual employment of that duration is deemed a monthly contract. The court pronounced him a contractual employee.

p. 4
02

Fairness of termination

Holding

Termination was unlawful and unfair for lack of valid reason and absence of fair procedure

Reasoning

Under sections 43 and 45 of the Employment Act the employer must prove valid reasons and fair procedure. The defence of absconding was not proved; no notice to show cause or hearing was conducted under section 41. Injury is not a valid basis for termination.

p. 5
03

Entitlement to terminal dues and compensation

Holding

One month notice pay, 21 days leave pay and three months' gross salary compensation awarded

Reasoning

Following conversion to contractual terms, notice pay was due under section 35. Leave was undisputedly not granted, earning leave pay under section 28. Under sections 49 and 50, compensation of three months' gross salary was appropriate given one year of service and no contribution by the claimant to the termination.

p. 6

Legal principles established

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  • Casual employment that continues beyond three months is deemed, under section 37 of the Employment Act, to be a term contract with wages paid monthly
  • An employer alleging that an employee absconded must prove efforts to contact the employee and must issue notice to show cause before termination

Court orders

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  1. 1.A declaration that the claimant was a contractual employee and the termination was unlawful and unfair
  2. 2.Notice pay in lieu of 1 month's Salary kshs 18,237
  3. 3.Leave pay in lieu kshs 12,765.90
  4. 4.Compensation for unfair termination equivalent of 3 months gross salary kshs 54,711
  5. 5.Interest on (b, c and d) above plus costs at court rate from judgment date
  6. 6.Certificates of service to issue according to section 51 of the Employment Act
  7. 7.Stay of 30 days granted

Authorities

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Legislation

  • Employment Actsection 37
  • Employment Actsection 45(2)
  • Employment Actsection 43
  • Employment Actsection 41
  • Employment Actsection 35
  • Employment Actsection 28
  • Employment Actsection 49(4)
  • Employment Actsection 50
  • Employment Actsection 51
  • Constitution of Kenyaright to fair labour practices (as pleaded)

Cases cited (5)

  • Chemilil Sugar Company v Ebrahim Ochieng Otuon & 2 others
    (2015)
  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
  • Simon Mbithi Mbane Vs Inter Security Services Limited
    (2018) eKLR
  • Wilson Kibande Abai v Kenya Tents Limited
    [2019] eKLR
  • Obonyo v Kibos Sugar & Allied Industries
    [2024] KEELRC 1392 (KLR)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance memorandum of 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, "Mulima v National Cement Company Limited (Cause 80 of 2017) [2025] KEELRC 2611 (KLR)", Case Analysis (2025). Employment and Labour Relations Court at Nairobi, Memorandum of Claim dated 9th December 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2611/eng@2025-09-26

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