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ELRCPartially AllowedAppeal No E329 of 2024· [2025] KEELRC 2898 (KLR)

Ndusi v Ochieng (Appeal E329 of 2024) [2025] KEELRC 2898 (KLR)

Employment and Labour Relations Court
24 October 2025
3,133 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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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

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Executive summary

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This is a first appeal to the Employment and Labour Relations Court against the judgment of Hon Nelly W. Karuiki, Chief Magistrate, delivered on 25th October 2024 in CMEL No. E1888 of 2021, which dismissed the appellant's claim for unfair and unlawful dismissal from employment as a shamba boy. The appellant, engaged after the respondent's father died in July 2007, challenged the finding that he was a casual employee and that his termination was for a valid reason through a fair procedure. The appeal was disposed of by written submissions. The court reiterated its duty as a first appellate court to re-evaluate the evidence while guarding against whimsically displacing trial court findings. It held, applying sections 2, 10(7) and 37(1) of the Employment Act, that the trial court erred in finding the appellant a casual employee; absent a written contract the burden lay on the employer, and monthly payment plus a long relationship converted him into a regular employee. On substance, the court found the respondent had a valid reason for termination - the appellant allowed unauthorised persons to remove flower pots contrary to an implied obligation to guard the premises - but no evidence demonstrated any procedural fairness under section 41, so the termination was procedurally unfair. Balancing factors including the menial nature of the work, the existence of reasonable grounds save for process, and the long relationship, the court awarded two months' salary as compensation, one month's notice pay, underpayments, house allowance and service pay, totalling Kshs. 365,066.14, deeming other heads disallowed for want of evidence. The appeal being partially successful, each party was ordered to bear their own costs.

Key legal issues

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01

Status of the appellant - casual or regular employee

Holding

The trial court erred; the appellant became a regular employee by dint of section 37(1) of the Employment Act

Reasoning

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.

p. 6
02

Validity of the reason for termination

Holding

The respondent had a valid reason - the appellant allowed unauthorised persons to remove pots despite an implied obligation to guard the premises

Reasoning

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.

p. 6
03

Procedural fairness of the termination

Holding

The termination was procedurally unfair; no evidence demonstrated any modicum of procedural fairness

Reasoning

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.

p. 6
04

Reliefs payable

Holding

Two months' compensation, one month's notice pay, underpayments, house allowance and service pay awarded; other heads disallowed for want of evidence

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 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. 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. 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. 4.Award of one month's salary in lieu of notice of Kshs. 13,572.92
  5. 5.Award of underpayments for the period worked of Kshs. 208,974.75 (Operative Wage Orders)
  6. 6.Award of house allowance of Kshs. 95,013.28
  7. 7.Award of service pay of Kshs. 20,359
  8. 8.Other heads of claims not awarded deemed disallowed for want of evidence
  9. 9.Each party to bear their own costs as the appeal was partially successful

Authorities

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Legislation

  • Employment Act, 2007section 2 (definition of casual employee)
  • Employment Act, 2007section 10(7)
  • Employment Act, 2007section 35(1)(c)
  • Employment Act, 2007section 37(1)
  • Employment Act, 2007section 41
  • Employment Act, 2007section 43(1)
  • Employment Act, 2007section 45
  • Wages Order 2021

Cases cited (7)

  • Empire Feeds Ltd v. King'ou
    KEELRC 1501 (KLR)
  • Francis Ndirangu Wachira v. Betty Wairimu
    [2019] eKLR
  • Nanyuki Water & Sewerage Company Ltd vs. Benson Mwiti Ntiru & 4 Others
    [2018] eKLR
  • National Bank of Kenya vs. Samuel Nguru Mutonya
    [2019] eKLR
  • Mark William Trevor Price & Caroline Elsa Anne Sturdy vs. John Greaves Hilder
    [1984] KECA 114 [KLR]
  • CMC Aviation Ltd vs. Maohammed Noor
    [2015] KECA 775 (KLR)
  • Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates
    [2013] eKLR
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

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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, "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.