Musya v Ndumu Plastics Limited (Environment and Land Case E002 of 2022) [2026] KEMC 423 (KLR)
The bottom line
#A Kenyan court ruled that a worker paid monthly for three years was not casual, and his employer's COVID-19 'redundancy' was unfair because it skipped required legal steps.
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 Claimant was an employee of the respondent as envisaged by law
- 2.Whether the claimant was dismissed from employment
- 3.If so, whether such dismissal was wrongful or unfair
- 4.Whether the Claimant is entitled to the reliefs sought
Key legal issues
#Status of the claimant's employment - intermittent casual worker or monthly contract employee
The claimant was not an intermittent casual labourer; if initially casual, the contract converted by operation of law under section 37 to one where wages are paid monthly
The claimant produced a 24/3/2020 letter authored by the respondent's witness confirming employment as a security guard, and an uncontroverted Mpesa statement showing monthly payments of Ksh. 10,000/= from April 2019 to July 2022 with no breaks. The respondent's own pleadings were contradictory, describing the claimant both as an intermittent casual and as a member of staff given notice and paid in lieu of notice. Monthly payment for three years is inconsistent with casual engagement, and section 37 deems such employment a monthly contract.
Whether the termination was a lawful redundancy or an unfair termination
The respondent's actions fell short of a lawful redundancy; the procedure was irregular, unlawful and unfair
Assuming a business-closure redundancy, section 40(1) of the Employment Act prescribes mandatory conditions: personal written notice to the employee and notification of the labour officer, plus notice pay and severance. The 3/5/2022 memo was general, addressed to 'staffs', with no evidence it was served on the claimant, and no evidence the labour officer was informed. Applying Kenya Airways Ltd v Aviation & Allied Workers Union, the employer had to prove a valid, fair reason and fair procedure; it failed on procedure.
Remedies for unfair termination
Award of 8 months' salary as damages for unfair termination, accumulated leave pay, pro rata leave pay, service pay, certificate of service; notice pay and overtime refused
Under section 49(1)(c) the maximum is twelve months' salary, but mitigation, unclear evidence of re-employment and dependants led to an award of eight months. Leave was computed at 21 days per year under section 28(1)(a) for three years plus pro rata for two months. Service pay at 15 days per year under section 35(5) applied since no evidence showed membership of a pension, NSSF or similar scheme. Overtime failed for want of strict proof; notice pay was covered by the June 2022 salary.
Legal principles established
#- An employer who fails to issue a written contract of service for employment exceeding three months bears the burden of proving or disproving alleged terms of employment, and the employee's word is to be believed
- Casual employment cannot lawfully continue indefinitely; where a casual employee works continuously for the equivalent of not less than one month, the contract is deemed to be one where wages are paid monthly under section 37 of the Employment Act
- Financial difficulties such as COVID-19-driven business closure can constitute genuine redundancy, but the employer must still comply with the mandatory procedural requirements of section 40 of the Employment Act, including notifying the labour officer and the employee personally in writing
- A claim for unpaid overtime is in the nature of special damages and must be specifically pleaded and strictly proved
Court orders
#- 1.Judgment entered in favour of the Claimant against the Respondent
- 2.Damages for unfair termination of Ksh. 80,000/=
- 3.Accumulated leave days pay of Ksh. 21,000/=
- 4.Pro rata leave days pay of Ksh. 1,333/=
- 5.Service pay of Ksh. 15,000/= (total award Ksh. 117,333/=)
- 6.Respondent to issue the Claimant with a Certificate of Service within 45 days
- 7.Awards subject to statutory deductions pursuant to section 49(2) of the Employment Act
- 8.Decretal sum to accrue interest at court rates from the date of judgment/decree until payment in full
- 9.Respondent to bear the costs of the suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations jurisdiction of the magistrates' court (Employment Act); suit filed as Makindu SPMC ELRC Case No. E002 of 2022
Relief refused
#Notice pay of Ksh. 10,000/=
Claimant was paid salary up to June 2022 although services terminated in May 2022, covering salary in lieu of notice
Damages for wrongful dismissal at 12 months' salary (Ksh. 120,000/=)
Reduced to 8 months' salary given the claimant's duty to mitigate and unclear evidence on re-employment and dependants
Unpaid overtime (claimed in paragraph 16 of the Memorandum of Claim but omitted from the concluding prayers)
Overtime is in the nature of special damages, must be specifically pleaded and strictly proved; no evidence of hours worked was led
Costs
The Respondent shall bear the costs of the suit.
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.
Based on the evidence on record, I find and hold that the claimant was not an intermittent casual labourer and if at all he was initially employed on casual basis, the contract of service of the claimant assumed permanency and was deemed to be one where wages are paid monthly and section 35 (1) (c) applies to that contract of service in terms of section 37.
In view of the foregoing, I find that the respondent's actions fall short of a redundancy. The procedure adopted by the respondent to terminate the service of the claimant was highly irregular and unlawful. It was unfair.
It is my finding that the Claimant has proven his case against the Respondent on a balance of probabilities. Consequently, the orders which commend themselves to me, and which I hereby make are as follows: a) Judgment is hereby entered in favour of the Claimant against the Respondent;
iv. Service pay………………………………………………………………Ksh. 15,000/= Total………………………………………………………………….Ksh.117,333/=
c) The Respondent to issue the Claimant with a Certificate of Service within 45 days from today; d) The above sums shall be subject to statutory deductions pursuant to section 49(2) of the Employment Act;
e) The decretal sum shall accrue interest at court rates from the date of judgment/decree until payment in full; f) The Respondent shall bear the costs of the suit.
Issues in the judgment
#The respondent's case is internally contradictory: it alleges the claimant was an intermittent casual worker who absconded, yet also asserts he was given one month's notice as a member of staff and paid one month's salary in lieu of notice
The Memorandum of Claim lists two different figures both described as 'Pro-rated leave' (Ksh. 52,500/= and Ksh. 47,952/=), and the court noted the duplication and lack of basis for the figures
The claimant's date of discovering the removal of the property is stated inconsistently: the pleadings and issues section says 1/5/2022 while the claim alleges implied dismissal on 1/6/2022, and the analysis refers to services terminated in May 2022 though the claimant averred termination on 1/6/2022
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Musya v Ndumu Plastics Limited (Environment and Land Case E002 of 2022) [2026] KEMC 423 (KLR)", Case Analysis (2026). Makindu SPMC ELRC Case No. E002 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/423/eng@2026-07-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.