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ELRCPartially AllowedMombasa CMELRC No. E506 of 2023 (Appeal)

Insight Management Consultants Limited v Silungi (Appeal E066 of 2025) [2025] KEELRC 2553 (KLR)

Employment and Labour Relations Court
25 September 2025
2,531 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed that casual workers hired day-by-day can gain full employment protections, and employers must follow redundancy procedure or pay.

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 in Mombasa CMELRC No. E506 of 2023, delivered on 21 March 2025, which found that the appellant had unfairly terminated the respondent's employment through redundancy and awarded various dues. The respondent claimed he was employed as a machine operator from 1 August 2016 to 2 May 2022, paid a daily wage below the 2018 Wage Order rate, and declared redundant without due process. The appellant denied a continuous employment relationship, asserting the respondent was a daily piece-rate worker last allocated work on 17 January 2022. The appeal challenged the existence of an employment relationship, the application of section 40 of the Employment Act, and the awards based on the 2018 Wage Orders. The court, hearing the appeal as a first appeal, reviewed the record and held that the appellant's own work records proved an employment relationship. Since the alleged piece-rate arrangement was never reduced to writing and the respondent attended work over extended periods and was paid weekly, he fell within the protection of section 37 of the Employment Act, consistent with recent Court of Appeal authority. Termination for lack of work was a redundancy under section 40, but unfair absent notice and payment of statutory dues. The court varied the trial court's judgment, awarding severance pay of Ksh. 48,975 (15 days per year for 5 complete years), notice pay of Ksh. 19,590, pay for days worked of Ksh. 4,434.30, a certificate of service, and costs of the trial court as awarded, with each party bearing its own costs of the appeal.

Questions the Court framed

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

  1. 1.Whether an employment relationship existed between the appellant and the respondent
  2. 2.Whether the respondent was a casual/piece-rate employee or protected under section 37 of the Employment Act
  3. 3.Whether the termination on 2 May 2022 amounted to unfair redundancy under sections 40, 41, 43 and 45 of the Employment Act
  4. 4.Whether the trial court's awards based on the 2018 Wage Orders were justified
  5. 5.What terminal dues and severance pay were payable

Key legal issues

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01

Existence of employment relationship

Holding

The appellant's own work records demonstrated that an employment relationship existed

Reasoning

The appellant denied the employment relationship, yet the work records it produced showed the respondent attending and working on various days. The court treated those records as establishing the relationship, and the payroll was unchallenged. Weekly payment of wages did not negate the respondent's rights under the Act.

p. 4
02

Casual/piece-rate status versus section 37 protection

Holding

The respondent was not a casual employee; his continued attendance over years brought him within section 37 protection

Reasoning

Although the employer alleged piece-rate daily engagement, the intention was never reduced to writing. The respondent attended work across multiple days and months (e.g. January 2021: 2 days; February: 9 days; March: 10 days), was paid weekly, and the work was not necessarily completed within a day, attracting section 37 protection per Kenyatta University and Juma v Mada Holdings.

p. 4
03

Unfair redundancy

Holding

Termination for lack of work was a redundancy under section 40, but was unfair for want of notice and payment of statutory dues; the trial magistrate's finding was accurate to that extent

Reasoning

Termination due to non-availability of work was not challenged. Section 40 permits termination for operational reasons but requires notice and payment of dues under section 40(1). The magistrate's finding of unfair redundancy was upheld, though the quantum was varied, with severance of 15 days' pay per year for 5 complete years and notice pay at KSh. 19,590 based on the last wage of Ksh. 653.

p. 5

Legal principles established

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  • Where there is no written agreement on the nature of employment and the employee continues to attend work, employment does not end each day and the employee is protected under section 37 of the Employment Act
  • An employer may terminate employment for operational reasons under section 40 but must issue notice and pay the statutory dues
  • On a first appeal the court must analyse the record, review the findings and make its own conclusions

Court orders

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  1. 1.Severance pay Ksh. 48,975
  2. 2.Notice pay Ksh. 19,590
  3. 3.Pay for days worked Ksh. 4,434.30
  4. 4.Certificate of service
  5. 5.Costs for the trial court as awarded
  6. 6.For the appeal, each party to bear its costs

The bench

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

majority

Wrote the judgment

On appeal from
Magistrates' Court (ELRC), Mombasa
CMELRC No. E506 of 2023
Jurisdiction invoked
First appeal from the magistrates' court under the Employment Act (ELRC appellate jurisdiction)

Relief refused

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Appellant's prayer to have the claim dismissed with costs

Court found an employment relationship protected under section 37 and upheld the finding of unfair redundancy, only varying the quantum

p. 6

Leave pay award of Ksh. 61,021.02 made by the trial court

Not sustained on appeal; the court substituted its own awards of severance, notice pay and pay for days worked without maintaining the leave award

p. 6

5 months' compensation for unfair termination (KSh. 76,917.25) awarded by the trial court

Court held the severance pay addressed the unfair redundancy claim

p. 5

Costs

Costs for the trial court as awarded; for the appeal, each party to bear its costs.

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.

Accordingly, the judgment in Mombasa CMELRC No. E506 of 2023 is reviewed with the following awards; a. Severance pay Ksh. 48, 975. b. Notice pay Ksh 19,590, c. Pay for days worked Ksh 4, 434.30. d. Certificate of service. e. Costs for the trial court as awarded. f. For the appeal, each party to bear its costs.
p. 6Final orders / disposition
where there is no written agreement on the nature of employment and the employee continues to attend work, the nature of it does not end each day; the employee becomes protected under Section 37 of the Employment Act
p. 4Section 37 protection of casual employees
Based on the work records produced by the appellant, an employment relationship existed.
p. 4Existence of employment relationship
The learned magistrate analysed the facts and made accurate findings to the extent that this was an unfair redundancy with the payment of the statutory dues under section 40 of the Act.
p. 5Unfair redundancy

Issues in the judgment

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minor

Paragraph numbering is inconsistent and duplicated (the sequence runs ...27, 28, 29, 30, 31, 32, 33, 34, 35 then later restarts with 27 and 28)

minor

Contradiction in the record of work attendance: earlier the respondent's last day is stated as 2 May 2022, while the appellant's payment records indicate he was last paid on 17 January 2022; the court's severance computation also runs to 2 May 2021, not 2 May 2022

minor

Conflicting descriptions of the daily wage (Ksh. 650 claimed by the respondent, Ksh. 653 by the appellant, and Ksh. 653 also cited in the appellant's own grounds)

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, "Insight Management Consultants Limited v Silungi (Appeal E066 of 2025) [2025] KEELRC 2553 (KLR)", Case Analysis (2025). Mombasa CMELRC No. E506 of 2023 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2553/eng@2025-09-25

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