Ndusi v Ochieng (Appeal E329 of 2024) [2025] KEELRC 2898 (KLR)
The bottom line
#Kenya's Employment Court ruled a long-serving 'casual' worker was actually a regular employee, and his dismissal was unfair because he was never heard.
What this practically means
#Executive summary
#Key legal issues
#Status of the appellant - casual or regular employee
The trial court erred; the appellant became a regular employee by dint of section 37(1) of the Employment Act
The court applied the statutory definition of a casual employee (payment at the end of each day, not engaged for longer than twenty-four hours) and section 37(1). There was no evidence the appellant was a casual employee, and the absence of a written contract shifted the burden to the employer under section 10(7). Monthly payment and a long continuing relationship removed the appellant from the casual employee ambit.
Validity of the reason for termination
The respondent had a valid reason - the appellant allowed unauthorised persons to remove pots despite an implied obligation to guard the premises
Although no evidence proved an express instruction, the nature of the appellant's work as caretaker imposed an implied obligation not to allow unauthorised access or removal of property. The appellant conceded people collected the pots without confirming authority from the respondent, which was wrong and constituted a valid reason for discipline.
Procedural fairness of the termination
The termination was procedurally unfair; no evidence demonstrated any modicum of procedural fairness
The respondent adduced no evidence of a show cause letter or disciplinary hearing, having wrongly treated the appellant as a casual employee. Section 41 requires that even a validly terminated employee be accorded an opportunity to be heard; the process need not be formal but hearing must be demonstrated.
Reliefs payable
Two months' compensation, one month's notice pay, underpayments, house allowance and service pay awarded; other heads disallowed for want of evidence
Taking into account the menial nature of the employment, the availability of alternative unskilled work, the existence of reasonable grounds for termination save for process, and the long relationship with the respondent, the court exercised discretion to award only two months' compensation plus the specified dues.
Legal principles established
#- Where an employer fails to produce a written contract or written particulars, the burden of proving or disproving an alleged term of employment is on the employer
- A casual employee who works for a period equivalent to not less than one month is deemed to be employed on monthly wages under section 37(1) of the Employment Act
- Even where an employer has justifiable reasons for termination, the employee must be accorded some measure of procedural fairness under section 41
- The duty of the first appellate court is to re-evaluate the evidence on both law and fact and come to its own findings, without whimsically replacing the trial court's view
Court orders
#- 1.Finding that the trial court erred in finding the appellant was a casual employee; that finding set aside and substituted with a finding that the appellant by dint of section 37(1) of the Employment Act became a regular employee
- 2.Finding that the respondent had a valid reason for terminating the appellant's service but did so through an unfair procedure; the trial court's finding on fair termination set aside to that extent
- 3.Award of two months' salary as compensation for unfair termination at Kshs. 13,572.92 per month, totalling Kshs. 27,145.84 (Wages Order 2021)
- 4.Award of one month's salary in lieu of notice of Kshs. 13,572.92
- 5.Award of underpayments for the period worked of Kshs. 208,974.75 (Operative Wage Orders)
- 6.Award of house allowance of Kshs. 95,013.28
- 7.Award of service pay of Kshs. 20,359
- 8.Other heads of claims not awarded deemed disallowed for want of evidence
- 9.Each party to bear their own costs as the appeal was partially successful
- On appeal from
- Milimani Commercial Chief Magistrate's Court
- ELRC No E1888 of 2021
- Jurisdiction invoked
- First appellate jurisdiction over appeals from the Chief Magistrate's Court in employment and labour relations matters
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndusi v Ochieng (Appeal E329 of 2024) [2025] KEELRC 2898 (KLR)", Case Analysis (2025). Appeal No E329 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2898/eng@2025-10-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.