Kenya Concrete, Structural, Ceramic Tiles, Wood Plys and Interior Design Workers Union v Kenya Builders and Concrete Co Ltd (Cause E723 of 2022) [2025] KEELRC 2557 (KLR)
The bottom line
#Kenya's Employment Court ruled that long-serving casual workers become permanent employees and cannot be fired without notice and a fair hearing.
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 Claimant's witness had authority to testify on behalf of the other grievants (representative suit)
- 2.Whether the grievants were still casual employees at the time of termination
- 3.Whether the Respondent had a valid reason to terminate the grievants
- 4.Whether the Respondent adhered to due procedure before dismissing the grievants
- 5.Whether the grievants are entitled to the reliefs sought, including reinstatement and adoption of the conciliator's recommendations
Key legal issues
#Status of long-serving casual employees
Grievants engaged as casuals for over three years were eligible for permanent/monthly employment under Section 37 of the Employment Act and could not be dismissed without due process.
The court applied Section 37(1) of the Employment Act, under which a casual employee who works for continuous periods equivalent to one month or more has the contract deemed to be one where wages are paid monthly. Having served from 2015 to 2020/2021 continuously, the grievants had transitioned out of casual status, entitling them to protections including notice, leave and fair procedure.
Procedural fairness in termination
The Respondent did not follow the process envisaged under Section 41 of the Employment Act; the termination was therefore unfair and unjustified.
Section 41(1) requires an employer, before terminating employment, to explain to the employee the reasons for termination in a language the employee understands and to allow the presence of a fellow employee or shop floor union representative. The Respondent offered no evidence that it subjected the grievants to any disciplinary process or explanation before separation, merely relying on their refusal to sign new contracts.
Effect of the conciliator's report
The conciliator's recommendations are not automatically binding; the court exercised its discretion but used the conciliator's findings and the Claimant's computations as the basis of the award.
While the Respondent argued under Rule 8(1)(b)(i) of the ELRC Procedure Rules, 2024 that a conciliator's report is not binding, the court nonetheless found the conciliator's findings that the employer failed to produce employment records persuasive, and adopted the union's tabulated terminal dues (service pay, one month's notice, leave, underpayment) as the measure of compensation.
Reinstatement as a remedy
Reinstatement was refused because more than three years had elapsed since separation, rendering the prayer untenable.
The grievants were terminated on 2nd December 2020 and the judgment was delivered in September 2025. Section 12(3) of the Employment and Labour Relations Court Act limits the court's power to order reinstatement to within three years of separation, so the remedy was no longer available.
Legal principles established
#- A casual employee who has worked continuously for the periods specified in Section 37 of the Employment Act is deemed to be employed on monthly terms and can only be terminated after following due process under Section 41.
- Termination without the procedural safeguards of Section 41 of the Employment Act is unfair and unjustified.
- A conciliator's report is not binding on the ELRC; the court exercises its own discretion on hearing the parties.
Court orders
#- 1.A finding that the termination of the grievants was unfair and unjustified
- 2.Compensation for unfair dismissal and payment of terminal dues to each grievant per the tabulated computations: Felix Mutuku Kshs. 206,280; Patrick Wambua Kshs. 122,608; Amuwa Bonface Kshs. 122,608; Bernard Wanyama Kshs. 352,264; Peter M. Mutisya Kshs. 152,126; Felix Kitheka Kshs. 79,774; grand total Kshs. 1,035,660
- 3.Respondent to pay costs of the suit
- 4.Interest at court rates with effect from the date of judgment
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Employment and Labour Relations Court over trade disputes (Employment and Labour Relations Court Act; Employment Act)
Relief refused
#Reinstatement of the seven members of the Claimant unconditionally
Not tenable given the length of time elapsed since dismissal (separation in 2020), reinstatement being limited to three years under Section 12(3) of the ELRC Act
Order adopting the conciliator's recommendations wholesale as orders of the court
The court is not bound to adopt the conciliator's recommendations; it exercised its own discretion and awarded terminal dues based on the conciliator's findings and the Claimant's submissions
Costs
The respondents will pay costs of this suit plus interest at court rates with effect from the date of this judgment.
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.
The envisaged process was never followed and therefore the termination of the greviants was unfair and unjustified.
I therefore find for the greviants and direct that they be compensated for unfair dismissal and be paid their terminal dues as per the conciliators findings and submissions by the claimant
The greviants however having been casuals for over 3 years they were elligible for permanent employment as per section 37 of the employment act 2007
The respondents will pay costs of this suit plus interest at court rates with efiect from the date of this judgment.
However, given the length of time from the time of dismissal to date the prayer for reinstatement is not tenable.
Issues in the judgment
#The judgment states the claim concerns termination of 'Mr. Bernard Wanyama and 5 others' (six grievants) yet prayers refer to 'The seven members of the Claimant'; the relief tabulated covers six grievants only.
Arithmetic inconsistencies in the award for Bernard Wanyama: the tabulated components (service 41,520 + notice 17,992 + leave 58,128 + underpayment 23,624) total 141,264, not the stated 352,264; underpayment is also computed as 188 x 26 x 48 = 234,624 not 23,624.
Arithmetic inconsistency in the award for Peter M. Mutisya: underpayment computed as 625-623=30 (should be 2) yet stated as 32,760.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Concrete, Structural, Ceramic Tiles, Wood Plys and Interior Design Workers Union v Kenya Builders and Concrete Co Ltd (Cause E723 of 2022) [2025] KEELRC 2557 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2557/eng@2025-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.