Apopo v Chic Fashions Limited (Appeal E099 of 2023) [2025] KEELRC 512 (KLR)
The bottom line
#Kenya's Employment Court confirmed an 18-year 'daily paid' worker was a permanent employee entitled to over Kshs 646,000 after unfair termination.
What this practically means
#Executive summary
#Key legal issues
#Whether the Appellant was a daily contract worker outside the protections of the Employment Act
The trial court erred; the relationship fell within the description of a casual employee and converted to a term contract under section 37 after three months, given 18 years of continuous service and NSSF remittances
The Employment Act recognises casual employment or piece work, not daily paid contracts as such. The Appellant worked cumulatively far beyond three months, and NSSF remittances from 2011 to 2020 showed continuous employment. The court found the daily paid contracts a scheme to circumvent section 37 and set aside the trial court's finding.
Whether the Appellant was unfairly terminated
Yes; the Respondent failed to prove absconding/desertion on a balance of probabilities and violated section 41 procedural fairness
The burden shifted to the employer once absconding was pleaded. Calls were made three months after the alleged absconding and the message only after demand letters; no show cause letter or disciplinary hearing was issued. Following authority on desertion and section 41's mandatory hearing requirements, the termination was substantively and procedurally unfair.
Whether the Appellant was entitled to terminal dues - compensation, notice pay, leave pay and underpayment
Entitled to 10 months' compensation, one month's notice pay, underpayments as a machine operator and unpaid leave, all computed from June 2008
Compensation under section 49 was guided by 18 years' service and lack of contribution to termination, tempered by Covid-19 effects. Leave pay and underpayment are continuing injuries filed within 12 months under section 90. The Respondent did not prove leave records; contracts were silent on the role, so the court deemed the Appellant a machine operator.
Legal principles established
#- An engagement termed a 'daily paid contract' but continuous in nature falls within the description of a casual employee and converts to a term contract under section 37 of the Employment Act after three months
- Prolonged daily-paid engagement is an unfair labour practice designed to circumvent section 37 of the Employment Act
- Dismissal on account of absconding must be preceded by evidence of reasonable attempts to contact the employee and a show cause letter
- Claims for leave pay and underpayment are continuing injuries which must be filed within 12 months of cessation of employment
Court orders
#- 1.The finding of the trial court that the Appellant was a daily paid contract employee not entitled to rights under the Employment Act is set aside
- 2.Judgment of the trial court dismissing the appellant's claim is set aside and substituted with judgment in favour of the appellant
- 3.Award of 10 months' salary compensation for unfair termination of Kshs 176,060/=
- 4.Award of one month's notice pay of Kshs 17,606/=
- 5.Award of underpayments of Kshs 282,672/=
- 6.Award of unpaid leave of Kshs 170,363.80/=
- 7.Total award of Kshs 646,701.80/= in favour of the Appellant
- On appeal from
- Milimani Chief Magistrate's Court (MC. ELRC NO. E1339 of 2020)
- MC. ELRC NO. E1339 of 2020
- Jurisdiction invoked
- First appellate jurisdiction over the magistrates' court ELRC suit (Employment and Labour Relations Court Appeals Division)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Apopo v Chic Fashions Limited (Appeal E099 of 2023) [2025] KEELRC 512 (KLR)", Case Analysis (2025). Memorandum of Appeal dated 16th June, 2023 (from MC. ELRC NO. E1339 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/512/eng@2025-02-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.