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ELRCPartially AllowedNot stated in the judgment (Memorandum of Claim dated 6th September 2022)

Bundi v Kiaraho (Employment and Labour Relations Cause E748 of 2022) [2025] KEELRC 671 (KLR)

Employment and Labour Relations Court
6 March 2025
2,209 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court awarded a security guard nearly Kshs 1 million after ruling five years of continuous work made him a protected employee, not a casual labourer.

What this practically means

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Executive summary

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The Claimant, Peter Njonja Bundi, sued Jackie Kiaraho, director of Jadav Gardens in Tigoni, Limuru, for unfair termination, termination in lieu of notice, and unfair and illegal labour practices. He was employed from 1st April 2015 to November 2020 as a private security guard at an agreed monthly salary of Kshs 16,000 but paid Kshs 10,000, working 12-hour daily shifts including weekends and public holidays without leave. In October 2020 he was arrested on the Respondent's command over an alleged theft outside his shift, held six days, and released without charge; he was then told to stay away from work and his employment was terminated without notice or hearing. The Respondent was served twice - by electronic service evidenced by two grey ticks and by personal service at 51 Mimosa Close, Runda Estate - but entered no appearance, so the claim proceeded ex parte. The court found the Claimant was an employee within Section 37 of the Employment Act, his five years of continuous work converting casual status into regular employment, and that his termination contravened Sections 35, 41 and 45. Judgment was entered declaring him a protected employee and his termination unlawful and unfair. Awards totalling Kshs 992,146.6 less statutory deductions comprised notice pay, one year's leave pay, underpayment for five years, Sunday, public holiday and overtime compensation limited to three years as time barred, service pay, and six months' salary for wrongful dismissal, with interest, a Certificate of Service, and costs to the Claimant.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Claimant was an employee protected under the Employment Act rather than a casual labourer, having worked continuously for over five years
  2. 2.Whether the Claimant's termination was lawful and fair, complying with Sections 35, 41 and 45 of the Employment Act
  3. 3.Whether the Respondent breached the Claimant's right to fair labour practices under Article 41 of the Constitution
  4. 4.What reliefs (notice pay, leave, underpayment, Sunday/public holiday pay, overtime, service pay, compensation for wrongful dismissal) the Claimant is entitled to

Key legal issues

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01

Status of the Claimant's employment

Holding

The Claimant was an employee protected under the Employment Act, not a casual labourer

Reasoning

Having worked continuously for over five years, Section 37 of the Employment Act converted his casual engagement into a regular contract of service. The court relied on the Claimant's uncontroverted evidence and submissions citing authority that continuous work beyond three months precludes casual classification. The Respondent, though duly served, did not appear or controvert the claim.

p. 4
02

Fairness of termination

Holding

The termination was unlawful and unfair under Section 45 of the Employment Act

Reasoning

The Claimant was arrested on the Respondent's command over an alleged theft outside his shift, held six days, released without charge, then instructed not to return to work. No notice, hearing or valid reason was given as required by Sections 35, 41 and 45. The evidence was uncontroverted as the Respondent failed to enter appearance despite service on two occasions.

p. 4
03

Entitlement to reliefs

Holding

The Claimant was awarded notice pay, leave, underpayment, Sunday, holiday and overtime pay (partly limited to three years as time barred), service pay and six months' salary for wrongful dismissal

Reasoning

The court granted the reliefs proved on the uncontroverted evidence but exercised restraint on limitation grounds, restricting Sunday, public holiday and overtime claims to three years, and awarded six rather than twelve months' salary for wrongful dismissal, arriving at a total of Kshs 992,146.6 less statutory deductions.

p. 5

Legal principles established

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  • A casual employee who has worked continuously for a period exceeding the statutory threshold is converted into a regular employee protected under the Employment Act
  • Termination without valid reason and without due process is unfair under Section 45 of the Employment Act

Court orders

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  1. 1.A declaration that the Claimant was an employee protected under the Employment Act and not a casual labourer
  2. 2.A declaration that the Claimant's termination was unlawful and unfair
  3. 3.Payment of one month's salary in lieu of notice Kshs 16,000
  4. 4.Compensation for lack of paid annual leave for one year Kshs 16,000
  5. 5.Underpayment for five years Kshs 300,000
  6. 6.Compensation for working on Sundays for three years Kshs 83,148 (remainder time barred)
  7. 7.Compensation for working on public holidays for three years Kshs 38,397
  8. 8.Overtime pay for three years Kshs 452,601.6
  9. 9.Service pay for five years Kshs 40,000
  10. 10.Six months' salary for wrongful dismissal Kshs 86,000
  11. 11.Total award of Kshs 992,146.6 less statutory deductions
  12. 12.The Respondent to issue a Certificate of Service under Section 51 of the Employment Act, 2007
  13. 13.Interest at court rates from the date of judgment until payment in full
  14. 14.Costs of the suit to the Claimant

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour relations claims (Article 41 fair labour practices; Employment Act, 2007)

Relief refused

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Portion of Sunday work compensation beyond three years

Limitation of actions - remainder held time barred

p. 4

12 months' salary as compensation for wrongful dismissal as pleaded (Kshs 192,000)

Court awarded 6 months' salary (Kshs 86,000) instead of the 12 months sought

p. 5

Full five years' compensation for public holidays and overtime

Court limited these heads to three years

p. 5

Costs

The Claimant is awarded costs of the suit.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

A declaration that the Claimant was an employee protected under the Employment Act and not a casual labourer.
p. 4Final orders - employment status
A declaration that the Claimant’s termination was unlawful and unfair.
p. 4Final orders - unfair termination
The total amount awarded is Kshs 992,146.6/- less statutory deductions.
p. 5Final orders - quantum
The awarded sum shall attract interest at court rates from the date of judgment until payment in full.
p. 5Final orders - interest
I find that the Claimant was an employee of the Respondent within the meaning of Section 37 of the Employment Act, 2007, and was unlawfully and unfairly terminated contrary to Section 45 of the Employment Act.
p. 4Ratio - casual conversion and unfair termination

Issues in the judgment

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minor

Salary figures conflict: the Memorandum of Claim states the agreed salary was Kshs 16,000 but only Kshs 10,000 was paid, while submissions state the Respondent 'continued to pay a salary of Kshs 10,000 per month'; the underpayment calculation also shifts between a minimum wage of Kshs 27,993 (memorandum) and Kshs 15,000 (submissions)

minor

Shift hours stated inconsistently: memorandum says 6:00 a.m. to 6:00 p.m., submissions say 6:00 PM to 6:00 AM

material

Wrongful dismissal award arithmetic inconsistent: 6 months' salary at the pleaded monthly salary of Kshs 16,000 would be Kshs 96,000, but the judgment awards Kshs 86,000; further, the stated line items do not obviously sum to the stated total of Kshs 992,146.6

minor

Underpayment award of Kshs 300,000 rests on inconsistent premises: memorandum pleads underpayment against a minimum wage of Kshs 27,993 while submissions plead underpayment of Kshs 5,000 per month against a minimum of Kshs 15,000

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Bundi v Kiaraho (Employment and Labour Relations Cause E748 of 2022) [2025] KEELRC 671 (KLR)", Case Analysis (2025). Not stated in the judgment (Memorandum of Claim dated 6th September 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/671/eng@2025-03-06

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.