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ELRCPartially AllowedAppeal from Mombasa CMELRC No. 422 of 2019· [2025] KEELRC 1100 (KLR)

Pride Inn Paradise Beach Resort & Spa v Rai & 6 others (Appeal E183 of 2024) [2025] KEELRC 1100 (KLR)

Employment and Labour Relations Court
3 April 2025
MMM. Mbarũ
1,935 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Sarova Whitesands lost its appeal mostly: its former room stewards were protected employees, but claims for extra hours and service charge failed for lack of evidence.

What this practically means

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Executive summary

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This is a first appeal against the judgment of the magistrates' court at Mombasa (CMELRC No. 422 of 2019) delivered on 1 August 2024, in which eight room stewards of the appellant hotel were awarded notice pay, extra-hours pay, leave pay, compensation for unfair termination and service charge after their employment was terminated in November 2018. The appellant employer contended before the trial court and on appeal that the respondents were casual employees engaged as and when work was available and paid daily wages weekly, so no conversion to protected employment occurred. The respondents relied on unchallenged witness statements, the human resources manager's admission, and casual payment and attendance records showing recurring weekly work patterns. On appeal the court reassessed the record as required on a first appeal, applied the statutory definition of a casual employee in section 2 of the Employment Act and the conversion mechanism in section 37(1), and endorsed the authorities on casual-to-regular conversion. It held that the respondents, working continuously for well over a month and paid weekly rather than daily, were properly converted to employment protected under the Act and entitled to notice and fair process on termination; the trial court's findings and awards of notice pay, leave pay, compensation, and costs could not be faulted. However, the appeal succeeded in part: the award for extra hours failed for want of particulars and evidence, and the service charge award failed because service charge is due only under a written contract, private treaty or CBA, none proved. The court set aside those two awards and allowed the remainder to stand, delivering judgment at Malindi on 3 April 2025.

Key legal issues

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01

Conversion of casual employment under section 37 of the Employment Act

Holding

The learned magistrate correctly found that the respondents' employment converted from casual terms to employment protected under the Employment Act

Reasoning

Section 2 defines a casual employee as one paid at the end of each day and not engaged for longer than 24 hours. The respondents worked recurring weekly schedules and were paid weekly, not daily. Under section 37(1), continuous service amounting to one month, or work not reasonably expected to be completed within three months, converts the engagement into protected employment, entitling the employees to notice and due process on termination.

p. 5
02

Entitlement to notice pay and compensation for unfair termination

Holding

Termination without notice entitled the respondents to the rights under section 37, as awarded by the trial court

Reasoning

Having found the respondents were protected employees, termination without notice or due process entitled them to notice pay and compensation. The magistrate's differentiation of compensation by length of service was unobjectionable. The awards for notice pay, leave pay and compensation therefore stand.

p. 5
03

Awards for extra hours and service charge

Holding

The awards for extra hours and service charge were unjustified and are set aside

Reasoning

No particulars or evidence supported the extra-hours claim beyond the stated 8-hour workday. Service charge arises only under a written contract, private treaty or CBA, and no special terms were proved. The appeal thus succeeds only to that extent.

p. 5

Legal principles established

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  • A casual employee is one paid at the end of each day and not engaged for longer than twenty-four hours at a time
  • A casual employee who works continuously for one month or more, or whose work cannot be completed within three months, is converted to employment protected under section 37 of the Employment Act
  • On a first appeal the court must reassess and review the record and draw its own conclusions, while appreciating that the trial court saw and heard the witnesses

Court orders

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  1. 1.The awards in Mombasa CMELRC No. 422 of 2019 for extra hours and service charge are set aside
  2. 2.The awards for notice pay, leave pay, compensation and costs shall remain as awarded by the trial court
On appeal from
Magistrates' Court (ELRC), Mombasa
Mombasa CMELRC No. 422 of 2019
Jurisdiction invoked
First appellate jurisdiction over the subordinate court's ELRC judgment (appeal on grounds of law and fact)

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, "Pride Inn Paradise Beach Resort & Spa v Rai & 6 others (Appeal E183 of 2024) [2025] KEELRC 1100 (KLR)", Case Analysis (2025). Appeal from Mombasa CMELRC No. 422 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1100/eng@2025-04-03

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