Weithaga Farm Extension Limited v Margaret Kanyiva Mugo

3. The Respondent contended that the foregoing amounted to termination of her employment. She asserted that she was neither issued with a Notice to Show Cause nor called upon to explain herself in respect of any alleged misconduct, and that no disciplinary hearing was convened to afford her an opportunity to be heard. Consequently, she maintained that her termination was unlawful and procedurally unfair, there having been neither a valid reason for the termination nor compliance with due process. 4. On the foregoing basis, the Respondent sought Kshs. 772,200.00, comprising one (1) month’s salary in lieu of notice, payment for untaken leave, unpaid house allowance and compensation for unfair termination. She also sought a declaration that her termination was unfair and unlawful, together with the costs of the suit and interest. 5. The Appellant opposed the claim and contended, in limine, that it was statutebarred, having been instituted outside the prescribed limitation period and without leave of the Court. 6. The Appellant further denied the existence of an employment relationship between the parties. It maintained that the Respondent had not produced a letter of appointment or any other evidence demonstrating that she was its employee. 2

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7. The Appellant further contended that the Respondent worked for it intermittently as a casual employee during the coffee-pruning seasons between 2012 and 2019, when its coffee-farming activities were suspended. 8. The Appellant explained that coffee pruning was seasonal and, consequently, the Respondent only worked for a few months in any given year. It therefore characterised the claims for untaken leave, overtime and house allowance as imaginary. 9. The Appellant further contended that since the Respondent’s engagement was for the performance of a specific task, the question of termination of employment did not arise. 10.It is noteworthy that, unlike other Respondents in the related matters who canvassed their respective cases through oral evidence, the Respondent herein did not adduce oral evidence in support of her claim. However, it is noteworthy that on 24th October 2023, counsel on record for the Appellant consented to the proposal by counsel for the Respondent that three (3) witnesses testify on behalf of the other Respondents in the series. 11.Having considered and evaluated the evidence on record, the learned Trial Magistrate entered judgment in favour of the Respondent in terms of the reliefs 3

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sought. In allowing the Respondent’s Claim, the Trial Court found that the Respondent was an employee of the Appellant and had been engaged for more than 24 hours and that her wages were paid on a monthly basis and beyond the period allowed for a casual employee. Consequently, the Trial Court held that by operation of Section 37 of the Employment Act the Respondent’s casual employment automatically converted into term employment, thereby entitling her to the statutory protections afforded under the Act. The Appeal 12.Dissatisfied with the decision of the Trial Court, the Appellant lodged the present Appeal, advancing the following six (6) grounds in support thereof: 1) THAT the Learned Magistrate erred in law and fact by finding for a Claimant who, without any reasonable explanation or leave of the Court, failed to appear to prosecute her claim. 2) THAT the Learned Magistrate erred in law and fact in making a finding that the Respondent worked continuously from 1993 contrary to documentary evidence before the Court.in reaching 3) THAT the Learned Magistrate erred in law and fact in reaching the conclusion that the Appellant deducted dues of NSSF from the Respondent’s wages without any proof and further failing to appreciate 4

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that membership to NSSF is retained by a member regardless of the number of times the member may change employment. 4) THAT the Learned Magistrate erred in law and fact by awarding amounts that were neither enumerated nor explained. 5) THAT the Learned Magistrate erred in law and fact by imputing an admission to the Claim by the Appellant contrary to the evidence of the Appellant’s witness and further by shifting the burden of proof from the Respondent to the Appellant in an apparent claim for liquidated damages. 6) THAT the Learned Magistrate erred in law and fact for disregarding uncorroborated documentary evidence tendered by the Appellant, thus showing open bias against the Appellant. 13.Consequently, the Appellant prays that the Judgment of the Trial Court delivered on 23rd April 2025, together with all consequential orders and the decree, be set aside and an order do issue dismissing the Respondent's claim in Murang'a CMELRC Cause No. 14 of 2020 in its entirety. The Appellant further seeks the costs of both the Appeal and the proceedings before the Trial Court. 5

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The Submissions 14.The Appeal was canvassed by way of written submissions. On its part, the Appellant submitted that the Respondent did not adduce any evidence in support of her case, nor did any person purporting to act on her behalf testify. It contended that no such person had been recognised as her agent pursuant to Order 9 of the Civil Procedure Rules. 15.Further, the Appellant submitted that the suit before the Trial Court was not a representative suit and, therefore, did not fall within the purview of Order 1 of the Civil Procedure Rules. It maintained that no authority had been filed in Court authorising any party to adduce evidence on behalf of the Respondent and that no suit was selected as a test suit. 16.The Appellant further submitted that no documentary evidence was produced on behalf of the Respondent. It therefore contended that there was no evidentiary basis upon which the Trial Court could properly enter judgment in her favour. In the circumstances, the Appellant maintained that the Respondent had failed to prove her case on a balance of probabilities. 17.The Appellant further submitted that, even if the Court was entitled to consider the Respondent’s case, she was not entitled to the reliefs sought. 6

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18.On her part, the Respondent submitted that her failure to testify before the Trial Court was not fatal to her case. In this regard, she contended that this issue was not material at the Trial Court adding that three (3) witnesses testified on her behalf. 19.In the same vein, the Respondent further submitted that the Trial Court, on its own motion, treated her case as part of a series of related matters and designated it as the de facto lead file for Murang’a MCELRC Cause Nos. 14, 16, 17 and 18 of 2020 and Murang’a MCELRC Cause No. E006 of 2021. According to the Respondent, the Trial Court exercised its inherent jurisdiction in doing so pursuant to Sections 1A, 1B and 3A of the Civil Procedure Act, 2010. 20.The Respondent further contended that the Appellant’s reliance on the absence of a formal order of consolidation amounted to an invocation of a mere technicality, which ought not to prevail over the substantive determination of the dispute on its merits. 21.It was the Respondent’s further submission that having asserted and proved that he was employed by the Appellant for over 10 years, the burden shifted to the Appellant to prove that he had been engaged on specific terms of employment, in accordance with Sections 9, 10 and 11 of the Employment Act. It was further 7

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submitted that even if she was a casual employee, it was incumbent upon the Appellant to demonstrate compliance with the relevant provisions of Section 37 of the Employment Act. That similarly, where there had been any change in the terms of her employment, the Appellant was required to demonstrate that she had been duly notified pursuant to Section 13 of the Employment Act. 22.The Respondent further submitted that the oral testimony of the three (3) witnesses before the Trial Court discredited the assertion that she was a casual employee engaged only during peak seasons. She contended that the evidence established that the Respondents worked continuously and were not laid off during the off-peak seasons. To this end, the Respondent maintained that she was consistently deployed by the Appellant on a day-to-day basis. 23.It was the Respondent’s contention that the muster roll produced by the Appellant was unreliable as it had missing pages and dates and did not show the terms upon which he (Respondent) was engaged. In the Respondent’s view, the said muster roll was of no benefit before the Court. 24.Referencing the case of Kenyatta University v Maina (Civil Appeal 261 of 2020) [2022] КЕСА 1201 (KLR), the Respondent posited that an employer cannot mask itself from any liabilities appurtenant to their unfair and unlawful 8

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labour practices by holding employees under the guise of there being peak and off-peak seasons. 25.The Respondent further posited that the defences advanced by the Appellant were mere afterthoughts which could hold any water. Analysis and Determination 26.As this is a first appeal, this Court is obligated to reconsider, re-evaluate, and re-analyse the entire evidence on record, together with the impugned Judgment, and to draw its own independent conclusions. In undertaking that exercise, however, the Court must remain mindful that it neither saw nor heard the witnesses testify and should therefore accord due deference to the Trial Court's findings on matters of credibility. This principle was aptly restated in the case of Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR. 27.Being mindful of the Court's mandate on a first appeal, and upon considering the grounds set out in the Memorandum of Appeal, the Record of Appeal in its entirety, the rival submissions and the applicable law, the Court has isolated the following issues for determination: 9

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a) What was the legal consequence of the Respondent’s failure to appear before the Court and testify in support of her case? b) Depending on the determination in (a), whether the Trial Court erred in finding that the Respondent's engagement as a casual employee had automatically converted into a term contract; c) Subject to the determination of issue (a), whether the Respondent's employment was unfairly terminated; d) Subject to the determination of issue (b), whether the reliefs awarded to the Respondent by the Trial Court are sustainable in law. Legal consequence of the Respondent’s failure to appear before the Court to testify in support of her case 28.As stated herein, the Respondent did not personally testify before the Trial Court in support of her claim. Nevertheless, the record shows that on 24 th October 2023, counsel for the Appellant consented to the proposal by counsel for the Respondent that three (3) witnesses testify on behalf of the other Respondents in the related matters. 10

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29.Thereafter, counsel for the Appellant called one (1) witness, whose testimony was likewise adopted and applied to all the Respondents in the series. This arrangement appears to have been informed by the fact that the matters were related and raised substantially similar issues. 30.In the circumstances, the Appellant’s contention that the Respondent’s failure to personally testify was fatal to her case comes across as an afterthought, particularly given its counsel’s participation in and consent to the agreed mode of presenting the evidence. 31.Accordingly, having regard to the record and the manner in which the evidence was presented, this Court finds that the Respondent’s failure to testify personally in support of her case was not fatal to her claim. 32.Having reached the above finding, I now turn to the question whether the Trial Court erred in finding that the Respondent’s engagement as a casual employee had, by operation of law, converted into a term contract. Conversion of the Respondent’s employment to a term contract 33.Before the Trial Court, the Respondent maintained that she was in continuous employment with the Appellant from 1993 until October 2019, when her 11

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employment was allegedly terminated verbally by the chairperson of the Appellant’s farm, Mr. Kimani Gine. 34.The Appellant, however, disputed the alleged continuity of the employment relationship, maintaining that the Respondent’s engagement was seasonal in nature and that she worked intermittently on a casual basis. 35.In support of its position, the Appellant produced muster rolls covering the period between December 2011 and August 2019. The records show that in January 2012, the Respondent worked for 28 days, and between 21 st December 2012 and 31st December 2012, the Respondent worked for 10 days. 36.As regards the year 2018, the muster rolls indicate that the Respondent worked for 7 days between 21st August 2018 and 5th September 2018, 9 days between 21st October 2018 and 5th November 2018, 13 days between 21st November 2018 and 5th December 2018 and 7 days between 6th December 2018 to 20th December 2018. 37.Under Section 2 of the Employment Act, a casual employee is defined as follows: 12

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“A person the terms of whose engagement provide for his payment at the end of each day and who is not engaged for a longer period than twentyfour hours at a time.” 38.In essence, a casual employee is one whose engagement is on a day-to-day basis, with each engagement not exceeding 24 hours. Under Section 35(1)(a) of the Employment Act, such employment is terminable by either party at the close of the day without the necessity of notice. 39.Upon re-evaluating the muster rolls produced before the Trial Court, this Court notes that, on certain occasions between December 2011 and December 2018, the Respondent rendered services continuously for periods exceeding 24 hours. 40.Indeed, the Trial Court similarly found that the Respondent had worked for periods exceeding the statutory duration of casual employment and that her wages were paid on a monthly basis, thereby falling outside the parameters of casual employment as contemplated under the Employment Act. 41.On the basis of that finding, the Trial Court concluded that the Respondent's casual engagement had, by operation of law, converted into term employment and was consequently protected under Section 37 of the Employment Act. 13

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42.The foregoing finding raises the question whether the Respondent’s occasional periods of work exceeding 24 hours resulted in the conversion of his engagement into a term contract pursuant to Section 37 of the Employment Act. 43.Section 37 of the Employment Act provides as follows: [37](1) Notwithstanding any provisions of this Act, where a casual employee— (a) works for a period or a number of continuous working days which amount in the aggregate to the equivalent of not less than one month; or (b) performs work which cannot reasonably be expected to be completed within a period, or a number of working days amounting in the aggregate to the equivalent of three months or more, the contract of service of the casual employee shall be deemed to be one where wages are paid monthly and section 35(1)(c) shall apply to that contract of service. (2) In calculating wages and the continuous working days under subsection (1), a casual employee shall be deemed to be entitled to one paid rest day after a continuous six days working period and such rest day 14

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or any public holiday which falls during the period under consideration shall be counted as part of continuous working days. (3) An employee whose contract of service has been converted in accordance with subsection (1), and who works continuously for two months or more from the date of employment as a casual employee shall be entitled to such terms and conditions of service as he would have been entitled to under this Act had he not initially been employed as a casual employee. (4) Notwithstanding any provisions of this Act, in any dispute before the Industrial Court on the terms and conditions of service of a casual employee, the Industrial Court shall have the power to vary the terms of service of the casual employee and may in so doing declare the employee to be employed on terms and conditions of service consistent with this Act. (5) A casual employee who is aggrieved by the treatment of his employer under the terms and conditions of his employment may file a complaint with the labour officer and section 87 of this Act shall apply. 44.Fundamentally, Section 37 of the Employment Act contemplates the conversion of casual employment into a regular term contract where an employee works continuously for a period aggregating to not less than one (1) 15

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month, or performs work which cannot reasonably be expected to be completed within a period of three (3) months or more. 45.Applying the foregoing statutory provisions to the facts of this case, this Court is not persuaded that the Respondent's engagement was converted into a term contract. This is for the reason that the evidence on record does not demonstrate that the Respondent worked continuously for a period aggregating to not less than one (1) month, as contemplated under Section 37 of the Employment Act. 46.It follows, therefore, that Section 35(1)(c) of the Employment Act did not apply to the Respondent's contract of service by virtue of Section 37. 47.Accordingly, this Court finds that the learned Trial Magistrate erred in holding that the Respondent's casual engagement had, by operation of law, converted into a term contract under Section 37 of the Employment Act. 48.Having so found, the second issue for determination, being whether the Respondent's employment was unfairly terminated, is rendered moot and does not fall for further consideration. Consequently, the reliefs awarded by the Trial Court, including notice pay, unpaid house allowance, payment in lieu of 16

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accrued leave, underpayments, and compensation for unfair termination, cannot be sustained and are hereby set aside. 49.In the final analysis, the Appeal succeeds. Accordingly, the Judgment of the Trial Court delivered on 23rd April 2025 is hereby set aside in its entirety and substituted with an order dismissing the Respondent's claim. 50.Each party shall bear its own costs. DATED, SIGNED and DELIVERED at NYERI this 25th day of September 2026. ……………………………… STELLA RUTTO JUDGE In the presence of: For the Appellant Mr. Kimani For the Respondent Mr. Wanyangu instructed by Mr. Namada Court Assistant Ndati ORDER In view of the declaration of measures restricting Court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent direction of 21st April 2020 that 17

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judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open Court. In permitting this course, this Court had been guided by Article 159(2)(d) of the Constitution which requires the Court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this Court the duty of the Court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes. STELLA RUTTO JUDGE 18

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