Ndusi v Ochieng (Appeal E329 of 2024) [2025] KEELRC 2898 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial court erred in finding that the appellant was a casual employee
- 2.Whether the respondent had a valid reason to terminate the appellant's service
- 3.Whether the respondent followed a fair procedure in terminating the appellant
- 4.Whether the appellant was entitled to the reliefs sought in the claim
Key legal issues
#Status of the appellant - casual or regular employee
The trial court erred; the appellant became a regular employee by dint of section 37(1) of the Employment Act
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.
Validity of the reason for termination
The respondent had a valid reason - the appellant allowed unauthorised persons to remove pots despite an implied obligation to guard the premises
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.
Procedural fairness of the termination
The termination was procedurally unfair; no evidence demonstrated any modicum of procedural fairness
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.
Reliefs payable
Two months' compensation, one month's notice pay, underpayments, house allowance and service pay awarded; other heads disallowed for want of evidence
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.
Legal principles established
#- 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
#- 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.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.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.Award of one month's salary in lieu of notice of Kshs. 13,572.92
- 5.Award of underpayments for the period worked of Kshs. 208,974.75 (Operative Wage Orders)
- 6.Award of house allowance of Kshs. 95,013.28
- 7.Award of service pay of Kshs. 20,359
- 8.Other heads of claims not awarded deemed disallowed for want of evidence
- 9.Each party to bear their own costs as the appeal was partially successful
The bench
#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
#Compensation for unutilized leave days (Kshs. 25,384.62)
No evidence adduced in support
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
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
#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.
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.
In this regard this Court finds and holds that the appellant was unfairly terminated through an unfair procedure.
The appeal being partially successful, each party shall bear their own costs.
Issues in the judgment
#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)
Name of counsel's authority 'CMC Aviation Ltd vs. Maohammed Noor' appears to misspell 'Mohammed' as printed
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.