Mustafa Abas Misri v Akiyda 2000 Limited [2014] KEELRC 1152 (KLR)
The bottom line
#A worker paid daily is not automatically casual — after three months of continuous work, Kenyan law protects you as a regular employee who can't be dismissed without a hearing.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.What was the true nature of the relationship between the parties - casual or permanent employee?
- 2.Whether the claimant's termination was unfair
- 3.What remedies, if any, were due to the claimant
Key legal issues
#Whether the claimant was a casual employee or a permanent employee
The claimant, though paid daily, worked continuously for over three months before termination and by operation of section 37(1) of the Employment Act ceased to be a casual employee
The court applied the statutory definition of a casual employee under section 18(2)(a) and the deeming provision of section 37(1). Both the claimant's evidence and the respondent's witness confirmed continuous engagement for six months before termination. The court applied control, integration and economic dependence criteria from South African authorities and noted that suspension and transfer of the claimant were inconsistent with casual employment, whose contract ends at the end of each day.
Whether the termination was unfair
The termination was unfair because the claimant was summarily dismissed for gross misconduct without being given a hearing as required by section 41 of the Employment Act
The respondent admitted summarily dismissing the claimant for gross misconduct. The court relied on its prior decision in Stephen Ongoya v The Nairobi Academy Ltd to hold that section 41 hearing requirements apply even in serious cases of gross misconduct, ensuring natural justice and the presence of a witness. The respondent did not claim to have applied section 41, and the court found this to be an unfair labour practice.
What remedies were due
Leave under section 28, service pay under section 35 at 15 days' pay per year for 10 years, one month's notice pay, and one month's compensation were awarded; unpaid salaries and severance pay were declined
Leave was not materially challenged and was granted. The court found no record of NSSF or NHIF remittances and awarded service pay of Kshs. 81,400.00 for ten years based on last gross pay of Kshs. 16,280.00. Unpaid salaries lacked evidential support and severance pay was held to be available only in redundancy. Compensation was limited to one month's pay.
Legal principles established
#- A casual employee engaged continuously beyond the period contemplated under section 37(1) of the Employment Act ceases to be casual by operation of law and becomes entitled to monthly-wage contract protections
- Even in cases of gross misconduct warranting summary dismissal, the employee must be given a hearing under section 41 of the Employment Act
- It is the employer's duty to keep employee records
Court orders
#- 1.A declaration that the termination of the claimant was unfair
- 2.Award for unfair termination at one months' gross salary at Kshs. 16,280.00
- 3.Notice pay at Kshs. 16,280.00
- 4.Service pay at Kshs. 81,400.00
- 5.Each party to bear their own costs
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 Industrial Court under Article 162(2) of the Constitution (implied from the court hearing an employment cause under the Employment Act)
Relief refused
#Claim for unpaid salaries for 10 years
No evidence of any outstanding salaries unpaid
Claim for severance pay
Severance pay arises only in redundancy, which was not the case here
Remittance of unpaid dues to NSSF and NHIF for 10 years
Court instead awarded service pay at 15 days' pay per year served under section 35 of the Employment Act
Costs
Each party to 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.
By operation of the law, the Claimant ceased serving as a casual from the time his engagement went beyond the 3 months contemplated under the law.
Even in a serious case of gross misconduct which warrants summary dismissal, the provisions of section 41 apply.
It is the realities of the relationship that has to determine its true nature.
In conclusion therefore, judgement is entered for the claimant against the respondent in the following terms;
a. A declaration that the termination of the claimant was unfair;
e. Each party to bear their own costs.
Issues in the judgment
#The judgment states both that the claimant worked continuously for 6 months immediately before termination and that he had worked for 10 years from November 2000 to January 2011; the treatment of the intervening period is not fully explained
The judgment records the claimant's monthly salary inconsistently - stating his wage was computed and paid every day yet 'to a total of Kshs.16, 280.00 per month'
The costs and reliefs ordered in the conclusion do not expressly include the Kshs.165,020.00 leave award granted in the remedies section
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mustafa Abas Misri v Akiyda 2000 Limited [2014] KEELRC 1152 (KLR)", Case Analysis (2014). Cause No. 868 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1152/eng@2014-05-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.