Equator Bottlers Limited v Sidede (Appeal E046 of 2024) [2025] KEELRC 1439 (KLR)
The bottom line
#Kenya's Employment Court confirmed casual workers become permanent after continuous service, but slashed parts of the award, including leave beyond three years.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Respondent's employment was converted from casual to permanent/term status under section 37 of the Employment Act despite no specific pleading for conversion
- 2.Whether the Respondent proved unlawful/summary termination by the Appellant
- 3.Whether the award of 'benefits in lieu of service' was sustainable in law
- 4.Whether the Magistrate erred in adopting Kshs. 18,000/- as the monthly salary
- 5.Whether the leave award was supportable and to what extent, having regard to limitation under section 90
- 6.Whether the award of 12 months' salary as compensation was justified
Key legal issues
#Conversion of casual employment to term/monthly contract
The Respondent's continuous service converted his contract under section 37 and 35 of the Employment Act; the Magistrate did not err in so holding, and no specific plea of conversion was necessary given the pleadings as to monthly salary.
Section 37(1) deems a casual employee who works for the equivalent of not less than one month, or performs work not completable within three months, to be employed on monthly wages. The Respondent's pleadings asserted a monthly salary while the Appellant asserted a consolidated salary, giving the Magistrate a basis to find entitlement to a monthly salary.
Lawfulness of the termination
The termination was unfair and unlawful: no disciplinary action, no notice and no hearing were afforded to the Respondent.
The Appellant led no evidence justifying the termination and took no disciplinary steps. The Magistrate's finding of unlawful dismissal stood, and the 12 months' compensation awarded was left undisturbed in substance.
Award of benefits in lieu of service
The award was reversed in its entirety as it is not provided for in law and service pay was not payable to the Respondent.
Service pay is payable under section 35 of the Employment Act; 'benefits in lieu of service' is an alien head with no statutory foundation, so the Magistrate lacked a basis for the award.
Correct monthly salary multiplicand
The figure of Kshs. 18,000/- was erroneous; the proper monthly salary computed from the Appellant's stated daily wage of Kshs. 653.10 is Kshs. 16,980.60.
Although the pleadings gave a basis for finding a monthly salary, the sum adopted as multiplicand was not established. Using the Appellant's own daily wage figure aggregated monthly yields Kshs. 16,980.60; the notice award and the 12 months' compensation were recalculated on that basis.
Legal principles established
#- A casual employee whose service meets the thresholds in section 37(1) of the Employment Act is deemed to have a contract with monthly wages under section 35(1)(c).
- On a first appeal, the court must reconsider and re-evaluate the evidence and draw its own conclusions while allowing for the fact that it neither saw nor heard the witnesses.
- Where monthly salary cannot be established, the court may compute it from the daily wage multiplicand supplied by the employer.
- Employment claims are subject to the three-year limitation period under section 90 of the Employment Act.
Court orders
#- 1.A declaration that the termination of the Respondent was unfair and unlawful
- 2.Compensation for the unlawful and unfair dismissal equivalent to 12 months salary - Kshs. 16,980.60 x 12 = Kshs. 203,767.20
- 3.Annual leave dues for 3 years - Kshs. 50,941.80
- 4.Certificate of service
- 5.Costs and interest of the claim in the Magistrate's Court
- 6.No order on the costs for the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Magistrate's Court at Winam
- Jurisdiction invoked
- First appellate jurisdiction over appeals from the Magistrate's Court in employment matters
Relief refused
#Benefits in lieu of service (Kshs. 36,000/-)
Not provided for in law; service pay under section 35 of the Employment Act was not payable
Leave allowance for the full six years of service
Leave dues for years prior to three years before the claim were statute-barred under section 90 of the Employment Act
Costs of the appeal
The Court made no order on costs of the appeal
Costs
Costs and interest of the claim in the Magistrate's Court to the Respondent; no order on the costs for the appeal.
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.
Where the contract of employment lead to the service of an employee initially employed on casual terms it can be converted to a term contract.
The Court, as the first appellate court, is required to reconsider the evidence, evaluate it afresh and draw its own conclusions but making allowance for the fact that it neither saw nor heard the witnesses.
Benefits in lieu of service are not provided for in law and there was therefore no basis for the award. It is reversed in its entirety as it was not capable of being granted.
a. A declaration that the termination of the Respondent was unfair and unlawful. b. Compensation for the unlawful and unfair dismissal equivalent to 12 months salary – Kshs. 16,980.60 x 12 = Kshs. 203,767.20
e. Costs and interest of the claim in the Magistrate’s Court. f. No order on the costs for the appeal.
Issues in the judgment
#The judgment does not state the appeal number, the name of the Appellant, or the neutral citation; the case title and number are reconstructed from context.
Internal inconsistency on length of service: the judgment elsewhere records service from February 2019 (about 3 years 4 months) to June 2022, but the disposition speaks of six years of service for the leave computation.
The Respondent's own pleadings and evidence on the nature of his employment were inconsistent (monthly salaried employee versus contract employee), as noted by the Appellant.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Equator Bottlers Limited v Sidede (Appeal E046 of 2024) [2025] KEELRC 1439 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1439/eng@2025-05-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.