Kaluworks Limited v Kichindo (Appeal E015 of 2025) [2025] KEELRC 2624 (KLR)
The bottom line
#A Kenyan court ruled that long-serving casual workers gain full employment protection, but underpayment claims expire three years after each underpayment occurs.
What this practically means
#Executive summary
#Key legal issues
#Whether the summary dismissal for abscondment was fair
The termination was unfair because the notices had no forwarding address, the respondent was treated as a casual throughout, and no effort was made to trace him before convening a disciplinary panel
The court found apparent abuse of process: the show-cause and disciplinary notices lacked any forwarding address, making service on an allegedly absent employee impossible. The employer had all along treated the respondent as a casual, yet demanded he take annual leave. The Supreme Court's definition of fair labour practices was applied; procedural compliance cannot sanitise an employer's failure to trace an employee before disciplining him in absentia.
Casual employment status and conversion to protected employment
Weekly payment of a daily wage accumulated over continuous long-term engagement converted the casual engagement into protected employment under sections 10 and 37
The employment was based on unwritten terms with the respondent recorded in casual sheets and paid weekly. Under section 37, continuous engagement in work not likely to end within a day attracts full statutory protection. Piece-rate engagement is permitted under section 18, but the court held the dignity of casual and piece-rate employees must be preserved, following Kenyatta University v Maina, Krystalline Salt and Kleeners Limited.
Limitation of underpayment claims
Underpayment is a continuing injury accruing daily; claims from September 2012 to October 2017 were time-barred as suit was filed on 10 December 2018
Following Rift Valley Railways v Musonye and The German School Society v Ohany, benefits such as housing allowances, overtime and work hours accrue daily, weekly or monthly and must be addressed within section 90 of the Employment Act. The respondent last worked on 27 October 2017 and filed on 10 December 2018; the continuing injuries should have been addressed on or before 26 October 2018, so those claims fail.
Computation of terminal dues
Notice pay and compensation recalculated at Ksh. 385 per day (the Kilifi-supported rate) under section 49; leave pay limited to 33 days under section 28(4)
The court accepted that an employee stationed in Kilifi County earns a different wage from one in Mombasa, but the respondent's daily wage of Ksh. 385 was supported by worksheets and payment schedules. Under section 49 the last wage paid is the applicable rate: notice pay of 30 days at Ksh. 385 equals Ksh. 11,550, and 10 months' compensation equals Ksh. 115,500. A certificate of service must issue under section 51.
Legal principles established
#- Continuous casual engagement beyond a short duration converts to protected employment under section 37 of the Employment Act
- Underpayments, housing allowances, overtime and work-hour benefits constitute continuing injuries that must be claimed within the limitation period in section 90 of the Employment Act
- Procedural compliance under sections 41 and 44 cannot sanction unfair labour practices; a disciplinary process conducted without attempting to trace the employee is defective
- Under section 49 of the Employment Act, terminal dues are tabulated at the last wage paid
Court orders
#- 1.A declaration that the employment was terminated unfairly
- 2.Notice pay of KSh. 11,550
- 3.Compensation of KSh. 115,500
- 4.Costs of the trial court to the respondent
- 5.The respondent allowed to attend and clear with the appellant, and any unpaid dues to be processed and paid in accordance with the notice terminating his employment
- 6.For the appeal, each party to bear its own costs
- On appeal from
- Magistrates' Court (ELRC), Mombasa
- Mombasa CMELRC No. 499 of 2018
- Jurisdiction invoked
- Appellate jurisdiction of the Employment and Labour Relations Court over appeals from the subordinate court (Employment and Labour Relations Court Act); not expressly cited
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kaluworks Limited v Kichindo (Appeal E015 of 2025) [2025] KEELRC 2624 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2624/eng@2025-09-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.