Mwadime & 3 others v Polystar Plastiks Limited (Cause E040, E038, E039 & E041 of 2024 (Consolidated)) [2024] KEELRC 2793 (KLR)
The bottom line
#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 period of employment
- 2.Whether there was unfair termination of employment
- 3.Whether the remedies sought should be allowed
Key legal issues
#Period of employment and effect of conversion into written annual contracts
Employment began on 14 February 2016 as casual labour but was lawfully converted into written annual contracts from 1 January 2019; earlier contracts lapsed on their terms and only the 2023 contract ended prematurely by redundancy. Claims are limited by Section 90 to 3 years back, and to 12 months for continuing injuries.
Section 10(3) of the Employment Act permits conversion of casual employment into written terms, which bind the court unless unlawful or contrary to public policy. The 2019 written contract was therefore valid. Prior contracts ended on their own terms, so severance-type claims cannot be extended over them. Section 90 imposes a 3-year limitation for employment claims and a 12-month window from cessation for continuing injuries, which frames each claim.
Whether the redundancy amounted to unfair termination
No unfair termination. The redundancy was for financial and operational reasons the claimant did not contest; notices were issued to the claimant and the labour officer, and the respondent complied with Section 40 of the Employment Act.
Redundancy on operational grounds is a lawful mode of termination. The claimant admitted receipt of the 16 November 2023 notice and did not contest the financial constraints cited. The employer must issue notice together with notice to the labour officer under Section 40; this was done, and notice may be oral or written. The respondent also offered terminal dues including notice pay and severance, which the court described as generous and which the claimant should have accepted.
Severance pay claim
Severance pay is payable only for the period affected by redundancy (the 2023 contract), not for earlier contracts that lapsed on their terms; the respondent's offer of severance for one year should have been accepted.
Section 40(1)(g) provides severance at not less than fifteen days' pay per completed year of service. Severance is due for every full year worked and is not prorated. Because earlier contracts ended by effluxion of time and not redundancy, extending severance over them would negate the very written-contract principle the claimant invokes under Section 10(3). The redundancy therefore attracts severance only for the 2023 service year.
Overtime claim
The overtime claim fails for lack of proof and for limitation. The schedule filed was undated and unsigned; in 2023 only a day shift existed, and the claim was filed more than 12 months after cessation of any alleged continuing injury.
The claimant's timesheets were not signed by the respondent, and the schedule did not indicate the years referenced. The respondent's uncontroverted evidence was that the night shift ended in 2019 and by 2023 only the day shift operated, from 8 a.m. to 5 p.m. Overtime accrues monthly and unpaid overtime is a continuing injury under Section 90, but the claim filed on 10 May 2024 exceeded 12 months from cessation, following the Court of Appeal in German School Society.
Legal principles established
#- Conversion of casual or oral employment into written contract terms under Section 10(3) of the Employment Act is lawful, and the court is bound by the written terms unless unlawful or contrary to public policy
- Redundancy for operational reasons is a lawful ground for termination of employment
- Notice of redundancy to an employee may be oral or written, and admission of being informed of the circumstances suffices
- Severance pay is due for every full year worked and is not prorated
- Overtime accrues monthly and, if unpaid, is a continuing injury subject to the 12-month limitation in Section 90 of the Employment Act
- Under Section 51 of the Employment Act, a Certificate of Service should issue at the end of each phase of employment
Court orders
#- 1.The claim is dismissed
- 2.Each party bears its own costs
- 3.The judgment applies to the consolidated suits: Cause No. E038 of 2024, Cause No. E039 of 2024, Cause No. E041 of 2024
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Employment and Labour Relations Court under the Employment Act; claims consolidated as arising from the same cause of action against the same respondent
- Consolidated with
- Cause No. E038 of 2024, Cause No. E039 of 2024, Cause No. E041 of 2024
Relief refused
#Notice pay of Ksh. 22,000 under Section 40(1)(b) of the Employment Act
The claimant served the redundancy notice period to completion; notice was issued and admitted, so notice pay was unnecessary though the respondent had offered to pay in lieu
Severance pay of Ksh. 88,000 for years of service
Severance pay attaches only to the period affected by the redundancy; earlier contracts lapsed on their own terms and severance is not prorated across lapsed contracts
Unpaid overtime of Ksh. 181,016.10 for the last 3 years
No proof of overtime; in 2023 there was only a day shift, and any continuing injury was caught by the 12-month limitation under Section 90 of the Employment Act
12 months' compensation of Ksh. 264,600
Termination was by lawful redundancy; due process under Section 40 was followed, so there is no unfair termination to compensate
A corrected Certificate of Service reflecting total years worked
Under Section 51 of the Employment Act a certificate is due at the end of each phase of employment; the certificate issued for the last contract phase was regular
Costs
Each party bears its 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.
In employment and labour relations, the employer can convert oral or casual employment into written contract terms under Section 10(3) of the Employment Act. Such conversion is lawful and legitimate.
Redundancy is a lawful ground for termination of employment, as held in the case of Elizabeth Tumaini Adhola v Management Board of St. Mary’s School [2015] KEELRC 1547 (KLR).
Severance pay is due to an employee for every full year worked. Severance pay is not prorated.
Overtime, in its nature, accrues monthly. It is a continuing injury if not paid monthly.
Accordingly, the claim is without merit and is hereby dismissed. Each party bears its costs.
Judgment herein applies in the consolidated suits; Cause No. E038 Of 2024 Cause No. E039 Of 2024 Cause No. E041 Of 2024
Issues in the judgment
#Conflicting dates for the first redundancy notice: the respondent's pleadings mention a notice issued on 31 October 2023, while the court refers to a notice dated 30 October 2023, and the manager's evidence mentions a second notice 'issued on 16 October 2023, taking efiect on 16 December 2023' although elsewhere that notice is dated 16 November 2023.
The judgment duplicates its analysis: paragraphs 22-34 repeat verbatim the structure and content of the earlier submissions and issues sections, then restart the determination at paragraph 35.
Inconsistent statement of the last contract's end date: paragraph 4 records the 2023 contract at Ksh.22,000 per month ending 31 December 2023, but paragraph 37 states 'His last contract was for 1 January to 31 January 2023'.
Internal contradiction on which contract ended prematurely: paragraph 39 says the 2019 contract 'lapsed on its terms', but paragraph 42 states 'the last contract commencing on 1 January 2019, which ended prematurely due to redundancy'.
The respondent's name is never stated in the judgment; the respondent is identified only by role and through its manager's testimony.
Contradictory holding on unfair termination: paragraph 65 states 'The court finds that no matter the unfair termination of employment. The respondent is at liberty to pay for notice and severance pay.', which is internally incoherent and conflicts with the dismissal of the compensation claim.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- H Young & Co (EA)Limited v Ndunda (Appeal E141 of 2024) [2025] KEELRC 2690 (KLR)[2025] KEELRC 2690 (KLR)30 Sept 2025followed
Cite this brief
#Cite this brief
Caselaw, "Mwadime & 3 others v Polystar Plastiks Limited (Cause E040, E038, E039 & E041 of 2024 (Consolidated)) [2024] KEELRC 2793 (KLR)", Case Analysis (2024). Cause No. 40 of 2024 (Lead File), with Causes No. E038, E039 and E041 of 2024 consolidated. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2793/eng@2024-11-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.