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ELRCDismissedAppeal from Milimani CMELC No. 403 of 2019· [2025] KEELRC 1572 (KLR)

Kimanthu & 3 others v Excel Chemicals Limited (Appeal E069 of 2020) [2025] KEELRC 1572 (KLR)

Employment and Labour Relations Court
29 May 2025
3,672 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This first-instance judgment of the Employment and Labour Relations Court at Nairobi, delivered by Byram Ongaya, Principal Judge, on 29 May 2025, determined an appeal and cross-appeal arising from the decision of Hon. L.L. Gicheha in Milimani CMELC No. 403 of 2019, in which the claimants' suit for notice pay, leave pay, damages for wrongful termination, overtime and service gratuity was dismissed with no order as to costs. The appellants contended that the magistrate misallocated the burden of proof on special damages, ignored sections 9, 10, 28, 35, 37 and 74 of the Employment Act, and wrongly found them to be casual employees. The respondent cross-appealed against the refusal of costs. The court reappraised the record and found that both sides' evidence established that the appellants were engaged as casual workers, paid Kshs. 650 daily, only when work was available. The court held that conversion of casual employment under section 37 of the Employment Act must be pleaded and proved by the employee on a balance of probabilities; that section 74's record-keeping duty does not shift the burden of proof to the employer; and that the claims and reliefs sought were inconsistent with casual employment. Following cited authorities including Nyaundi v Kilgoris Klassic Sacco, Kimuyu v Prime Fuels and Ole Manadiegi v General Cargo Services, the court dismissed the appeal, upheld the trial court's judgment and decree, declined to disturb the costs order, and directed each party to bear own costs of the appeal and cross-appeal.

Key legal issues

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01

Whether the appellants' casual employment converted to a term contract under section 37 of the Employment Act

Holding

The casual employment did not convert; both sides testified the appellants worked as casuals only when work was available, and continuous service equivalent to the statutory threshold was not established.

Reasoning

The court found the parties' evidence mutually established that the appellants were engaged only when work was available and paid Kshs. 650 daily. The appellants, some working intermittently from 1999 to 2019, did not plead or prove particulars of continuous working days or aggregate service meeting the section 37 thresholds. The trial court's finding that they remained casual employees was therefore not erroneous.

p. 5
02

Burden of proof regarding conversion and special damages

Holding

The burden of proving conversion and the special damages claimed rested on the appellants; section 74 does not shift that burden to the employer.

Reasoning

Following authority, the court held that the employer's record-keeping duty under section 74 concerns records that must be kept, not automatic default consequences for non-production in court; an employee must serve a notice to produce under the Evidence Act. Since the appellants pleaded claims inconsistent with casual employment and proved nothing, the trial court correctly declined the reliefs.

p. 8
03

Whether the cross-appeal on costs should be allowed

Holding

The cross-appeal was not granted; the trial court's order that there be no order as to costs was upheld in light of the practical circumstances of casual employees.

Reasoning

Although costs normally follow the event and the respondent did not contest the point, the court weighed the practical difficulty of recovering costs from casual employees and declined to make orders escalating unrecoverable costs, leaving the trial court's costs order intact.

p. 8

Legal principles established

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  • An employee alleging conversion of casual employment to a term contract under section 37 of the Employment Act bears the burden of proving continuous service or aggregate days worked, on a balance of probabilities.
  • The employer's statutory duty to keep employment records under section 74 does not shift the burden of proof to the employer or entitle an employee to judgment by default of production of records.
  • In a first appeal, the court re-evaluates the evidence but will not interfere with trial court findings absent misdirection in a material respect.

Court orders

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  1. 1.The appeal is dismissed and the trial Court's judgment and decree upheld
  2. 2.Each party to bear own costs of the appeal and cross-appeal
On appeal from
Milimani Chief Magistrate's Court (CMELC No. 403 of 2019)
403 of 2019
Jurisdiction invoked
Appeal against decision of the trial Magistrate under the Employment Act, Cap 226 Laws of Kenya

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, "Kimanthu & 3 others v Excel Chemicals Limited (Appeal E069 of 2020) [2025] KEELRC 1572 (KLR)", Case Analysis (2025). Appeal from Milimani CMELC No. 403 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1572/eng@2025-05-29

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