Mwamburi v Taita Taveta University (Employment and Labour Relations Cause E005 of 2024) [2026] KEMC 139 (KLR)
The bottom line
#A Kenyan court awarded a long-serving 'casual' worker Kshs 1.7 million, holding that continuous service beyond three months converts casual work into full employment under section 37 of the Employment Act.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant was a casual worker or an employee whose service converted under section 37 of the Employment Act, 2007
The claimant could not be termed a casual employee; having served continuously as a store clerk from 2008 to 2016, he was under section 37 entitled to all benefits of an employee on a contract of service, and the 2½ months contracts were meant to shield the respondent from full employee responsibility.
The respondent relied on the intervals on paper between successive 2½-month contracts to argue broken service. The court found no evidence of any actual period when the claimant was not serving in the same capacity; his renewal letters stating he had been working as a storekeeper were never disputed, and a department head's recommendation confirmed continuous service from 2008. Payment by cheque described as salary further undermined the casual-worker characterisation. Section 37 therefore applied by operation of law.
Whether terminal dues should be computed over the full 8 years of service or only the 1-year contract
Terminal dues had wrongly been computed on the 1-year contract only; the claimant was entitled to computation over the 8 years of service, and the court adopted Kshs 14,750/= as a fair basis for calculating gratuity.
The court found the respondent acted unjustly in computing terminal dues on the May 2015 to May 2016 contract alone despite 8 years of continuous service. There was no evidence of salary increments over the years; the 1-year contract indicated potential earnings up to Kshs 16,682/= from a starting salary of Kshs 13,018/=, so adopting the intermediate figure of Kshs 14,750/= was fair. All reliefs as tabulated in paragraph 15 of the claim were awarded.
Whether the claim was prematurely filed for failure to exhaust conciliation remedies
The claim was not premature; the dispute had been referred to and conciliated at the labour office, the respondent refused to participate, and the conciliator's findings were produced before the claim was filed in court.
The claimant lodged a complaint with his union which was referred to the labour office; a conciliator (T.S. Gona) was appointed and made findings recommending payment of various dues. The respondent refused to participate in the conciliation. Only after the conciliator's report dated 16/11/2020 did the claimant file the claim on 22/9/2024, so the exhaustion objection failed.
Whether the respondent proved the claimant took off days, annual leave or was paid for holidays
The respondent, as custodian of employment records, failed to demonstrate that the claimant took any off days or annual leave; its failure to keep such records was based on an unlawful characterisation of the claimant as a casual.
The employer is the custodian of employees' records. Allegations in the memorandum of claim that the claimant never had an off day, worked during public holidays and was never given annual leave were matters the respondent could have countered by availing relevant records. It had none, having treated the claimant as a casual entitled only to Kshs 400/= per day - an unlawful basis to deny basic conditions of service.
Legal principles established
#- An employee performing the same tasks on a continuous basis for over three months cannot be classified as a casual worker; by operation of section 37 of the Employment Act the employment converts into a contract of service with monthly wages and full statutory benefits.
- It is an unfair labour practice to keep an employee in service for many years while tagging the employee as a casual worker to justify denial of fair treatment and basic conditions of service.
- Where short successive contracts are used but there is no evidence of any actual break in service, the service is continuous and the whole period counts in computing terminal benefits.
Court orders
#- 1.Judgment entered in favour of the claimant against the respondent as prayed in the Memorandum of Claim, awarding Kshs 1,733,250/= terminal and contractual dues, subject to statutory deductions
- 2.Interest at court rates from the date of judgment until paid in full
- 3.The respondent to issue the claimant a certificate of service showing his full period of service, October 2008 to August 2016
- 4.Costs of suit awarded to the claimant against the respondent
- 5.Right of appeal prescribed to ELRC Mombasa
- Jurisdiction invoked
- Original employment and labour relations jurisdiction of the magistrates' court; Employment Act, 2007 (including section 37)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwamburi v Taita Taveta University (Employment and Labour Relations Cause E005 of 2024) [2026] KEMC 139 (KLR)", Case Analysis (2026). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/139/eng@2026-06-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.