Weithaga Farm Extension Limited v Mary Wambui Kamande
The bottom line
#Kenya's Employment Court ruled that casual farm work done only a few scattered days each year does not automatically become permanent employment.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.What was the legal consequence of the Respondent's failure to appear before the Court and testify in support of her case?
- 2.Depending on the determination in (a), whether the Trial Court erred in finding that the Respondent's engagement as a casual employee had automatically converted into a term contract
- 3.Subject to the determination of issue (a), whether the Respondent's employment was unfairly terminated
- 4.Subject to the determination of issue (b), whether the reliefs awarded to the Respondent by the Trial Court are sustainable in law
Key legal issues
#Consequence of the Respondent's failure to personally testify
Her failure to testify was not fatal to her claim because counsel for the Appellant had consented to three witnesses testifying on behalf of the Respondents in the series of related matters.
The record showed that on 24th October 2023 the Appellant's counsel consented to the proposal that three witnesses testify on behalf of the other Respondents in the related matters, and the Appellant's own witness was likewise adopted across the series. Having participated in and consented to that mode of presenting evidence, the Appellant could not resile from it and argue the claimant's absence was fatal; that contention was an afterthought.
Whether casual employment converted into a term contract under Section 37 of the Employment Act
No conversion occurred; the evidence did not show continuous work aggregating to not less than one month as contemplated by Section 37.
The muster rolls produced by the Appellant showed sporadic engagements: 8 days in December 2011, 9 days in December 2012, and scattered days/hours in 2018. Although there were occasional periods exceeding 24 hours, the evidence did not demonstrate continuous work aggregating to one month or work not reasonably completable within three months. The Trial Magistrate therefore erred in holding that the casual engagement had converted into a term contract by operation of law.
Whether the Respondent's employment was unfairly terminated and whether the reliefs were sustainable
The unfair termination question became moot given the finding on conversion, and all reliefs awarded by the Trial Court were set aside.
Having found that the Respondent's engagement never converted into a term contract under Section 37, the protections of the Employment Act applicable to term contracts did not attach, and Section 35(1)(c) did not apply. The question of unfair termination therefore did not fall for consideration, and the reliefs premised on term employment could not stand.
Legal principles established
#- On a first appeal, the court must reconsider and re-evaluate the entire evidence and draw its own conclusions, while according deference to the trial court's findings on credibility of witnesses it did not see or hear.
- Casual employment converts to a term contract under Section 37 of the Employment Act only where the employee works continuously for a period aggregating not less than one month, or performs work not reasonably expected to be completed within three months or more.
- A party who consented to an agreed mode of presenting evidence cannot later contend that the claimant's failure to personally testify was fatal to the claim.
Court orders
#- 1.The Judgment of the Trial Court delivered on 23rd April 2025 is set aside in its entirety and substituted with an order dismissing the Respondent's claim
- 2.The reliefs awarded by the Trial Court, including notice pay, unpaid house allowance, payment in lieu of accrued leave, underpayments, and compensation for unfair termination, are set aside
- 3.Each party shall bear its own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court at Murang'a (ELRC)
- Murang'a CMELRC Cause No. 15 of 2020
- Jurisdiction invoked
- First appellate jurisdiction over the subordinate court (ELRC appeal from the Magistrates' Court)
Relief refused
#All reliefs awarded by the Trial Court to the Respondent (notice pay, house allowance, leave, underpayments, compensation)
The finding of conversion of casual employment into a term contract under Section 37 of the Employment Act was overturned, rendering the reliefs unsustainable
Costs
Each party shall bear its own costs.
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.
In the final analysis, the Appeal succeeds. Accordingly, the Judgment of the Trial Court delivered on 23rd April 2025 is hereby set aside in its entirety and substituted with an order dismissing the Respondent's claim.
Each party shall bear its own costs.
Section 37 of the Employment Act contemplates the conversion of casual employment into a regular term contract where an employee works continuously for a period aggregating to not less than one (1) month, or performs work which cannot reasonably be expected to be completed within a period of three (3) months or more.
this Court is obligated to reconsider, re-evaluate, and re-analyse the entire evidence on record, together with the impugned Judgment, and to draw its own independent conclusions
the Appellant's contention that the Respondent's failure to personally testify was fatal to her case comes across as an afterthought, particularly given its counsel's participation in and consent to the agreed mode of presenting the evidence
Issues in the judgment
#Judgment delivery date (25 September 2026) post-dates the appeal filing year (2025) and the trial judgment (23 April 2025) by an unusual interval; date as printed retained.
Respondent's submissions inconsistently use male pronouns ('he was employed', 'he (Respondent)') for a female claimant.
Judgment recites COVID-19 video-conferencing delivery directions from 2020 despite a 2026 delivery date.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Weithaga Farm Extension Limited v Mary Wambui Kamande", Case Analysis (2026). ELRC Appeal No. E016 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2644/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.