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ELRCPartially AllowedNot stated in the judgment

Ndusi v Ochieng (Appeal E329 of 2024) [2025] KEELRC 2898 (KLR)

Employment and Labour Relations Court
24 October 2025
3,133 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled a long-serving 'casual' worker was actually a regular employee, and his dismissal was unfair because he was never heard.

What this practically means

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Executive summary

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This is a first appeal to the Employment and Labour Relations Court against the judgment of Hon Nelly W. Karuiki, Chief Magistrate, delivered on 25th October 2024 in CMEL No. E1888 of 2021, which dismissed the appellant's claim for unfair and unlawful dismissal from employment as a shamba boy. The appellant, engaged after the respondent's father died in July 2007, challenged the finding that he was a casual employee and that his termination was for a valid reason through a fair procedure. The appeal was disposed of by written submissions. The court reiterated its duty as a first appellate court to re-evaluate the evidence while guarding against whimsically displacing trial court findings. It held, applying sections 2, 10(7) and 37(1) of the Employment Act, that the trial court erred in finding the appellant a casual employee; absent a written contract the burden lay on the employer, and monthly payment plus a long relationship converted him into a regular employee. On substance, the court found the respondent had a valid reason for termination - the appellant allowed unauthorised persons to remove flower pots contrary to an implied obligation to guard the premises - but no evidence demonstrated any procedural fairness under section 41, so the termination was procedurally unfair. Balancing factors including the menial nature of the work, the existence of reasonable grounds save for process, and the long relationship, the court awarded two months' salary as compensation, one month's notice pay, underpayments, house allowance and service pay, totalling Kshs. 365,066.14, deeming other heads disallowed for want of evidence. The appeal being partially successful, each party was ordered to bear their own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the trial court erred in finding that the appellant was a casual employee
  2. 2.Whether the respondent had a valid reason to terminate the appellant's service
  3. 3.Whether the respondent followed a fair procedure in terminating the appellant
  4. 4.Whether the appellant was entitled to the reliefs sought in the claim

Key legal issues

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01

Status of the appellant - casual or regular employee

Holding

The trial court erred; the appellant became a regular employee by dint of section 37(1) of the Employment Act

Reasoning

The court applied the statutory definition of a casual employee (payment at the end of each day, not engaged for longer than twenty-four hours) and section 37(1). There was no evidence the appellant was a casual employee, and the absence of a written contract shifted the burden to the employer under section 10(7). Monthly payment and a long continuing relationship removed the appellant from the casual employee ambit.

p. 6
02

Validity of the reason for termination

Holding

The respondent had a valid reason - the appellant allowed unauthorised persons to remove pots despite an implied obligation to guard the premises

Reasoning

Although no evidence proved an express instruction, the nature of the appellant's work as caretaker imposed an implied obligation not to allow unauthorised access or removal of property. The appellant conceded people collected the pots without confirming authority from the respondent, which was wrong and constituted a valid reason for discipline.

p. 6
03

Procedural fairness of the termination

Holding

The termination was procedurally unfair; no evidence demonstrated any modicum of procedural fairness

Reasoning

The respondent adduced no evidence of a show cause letter or disciplinary hearing, having wrongly treated the appellant as a casual employee. Section 41 requires that even a validly terminated employee be accorded an opportunity to be heard; the process need not be formal but hearing must be demonstrated.

p. 6
04

Reliefs payable

Holding

Two months' compensation, one month's notice pay, underpayments, house allowance and service pay awarded; other heads disallowed for want of evidence

Reasoning

Taking into account the menial nature of the employment, the availability of alternative unskilled work, the existence of reasonable grounds for termination save for process, and the long relationship with the respondent, the court exercised discretion to award only two months' compensation plus the specified dues.

p. 6

Legal principles established

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  • Where an employer fails to produce a written contract or written particulars, the burden of proving or disproving an alleged term of employment is on the employer
  • A casual employee who works for a period equivalent to not less than one month is deemed to be employed on monthly wages under section 37(1) of the Employment Act
  • Even where an employer has justifiable reasons for termination, the employee must be accorded some measure of procedural fairness under section 41
  • The duty of the first appellate court is to re-evaluate the evidence on both law and fact and come to its own findings, without whimsically replacing the trial court's view

Court orders

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  1. 1.Finding that the trial court erred in finding the appellant was a casual employee; that finding set aside and substituted with a finding that the appellant by dint of section 37(1) of the Employment Act became a regular employee
  2. 2.Finding that the respondent had a valid reason for terminating the appellant's service but did so through an unfair procedure; the trial court's finding on fair termination set aside to that extent
  3. 3.Award of two months' salary as compensation for unfair termination at Kshs. 13,572.92 per month, totalling Kshs. 27,145.84 (Wages Order 2021)
  4. 4.Award of one month's salary in lieu of notice of Kshs. 13,572.92
  5. 5.Award of underpayments for the period worked of Kshs. 208,974.75 (Operative Wage Orders)
  6. 6.Award of house allowance of Kshs. 95,013.28
  7. 7.Award of service pay of Kshs. 20,359
  8. 8.Other heads of claims not awarded deemed disallowed for want of evidence
  9. 9.Each party to bear their own costs as the appeal was partially successful

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Wrote the judgment

On appeal from
Milimani Commercial Chief Magistrate's Court
ELRC No E1888 of 2021
Jurisdiction invoked
First appellate jurisdiction over appeals from the Chief Magistrate's Court in employment and labour relations matters

Relief refused

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Compensation for unutilized leave days (Kshs. 25,384.62)

No evidence adduced in support

p. 6

Public holidays worked (Kshs. 58,153.85)

No evidence adduced in support

Twelve months' salary compensation for unfair dismissal (Kshs. 162,874.80)

Court awarded only two months' compensation given the valid reason for termination, the menial nature of the work, ease of alternative unskilled employment and the long relationship with the respondent

p. 6

Interest on the claimed sums

Not awarded; only specified awards made

Costs

The appeal being partially successful, each party shall bear their own costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The trial court erred in finding that the appellant was a casual employee; that finding is therefore set aside and substituted with a finding that the appellant by dint of section 37(1) of the Employment Act became a regular employee.
p. 6Employment status - conversion of casual to regular employee
The respondent had a valid reasons for terminating the appellant's service but did so through an unfair procedure. The finding of the trial court that the termination of the appellant was fair for both reason and process is therefore set aside to that extent.
p. 6Termination - reason vs procedure
In this regard this Court finds and holds that the appellant was unfairly terminated through an unfair procedure.
p. 6Procedural fairness under section 41
The appeal being partially successful, each party shall bear their own costs.
p. 7Costs

Issues in the judgment

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minor

Date inconsistency: judgment concludes 'DATED AT NAIROBI THIS 24TH DAY OF OCTOBER, 2025' while the Memorandum of Appeal is dated 21st November 2024 and the appeal was disposed of by written submissions, but no hearing date intervenes in the record; also appellant is referred to in third person within the court's own reasoning ('he used to pay the respondent monthly' referring to the appellant as payer)

minor

Name of counsel's authority 'CMC Aviation Ltd vs. Maohammed Noor' appears to misspell 'Mohammed' as printed

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, "Ndusi v Ochieng (Appeal E329 of 2024) [2025] KEELRC 2898 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2898/eng@2025-10-24

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