Weithaga Farm Extension Limited v Jacob Ndung'u Ngugi

thereof. He further averred that at the time of his resignation, his salary stood at Kshs. 8,400.00, which was below the applicable minimum wage. 3. On that basis, the Respondent claimed a total sum of Kshs. 751,976.00, comprising unpaid house allowance, payment for untaken leave, unpaid overtime and salary underpayments. He also sought the costs of the suit and interest thereon. 4. The Appellant opposed the claim and contended, inter alia, that it was statutebarred, having been instituted outside the prescribed limitation period and without leave of the Court. 5. The Appellant further denied the existence of an employment relationship between the parties. It maintained that the Respondent had not produced a letter of appointment or any other evidence establishing that he was its employee. 6. The matter proceeded for hearing before the Trial Court, where both parties adduced oral and documentary evidence and thereafter filed written submissions. The Respondent testified in support of his case, while the Appellant called Mwangi Gathuri, a director of the company as its witness. 2

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7. Having considered the pleadings, the evidence on record, and the parties' respective submissions, the learned Trial Magistrate entered judgment in favour of the Respondent as prayed. In allowing the Respondent’s Claim, the Trial Court found that the Respondent was an employee of the Appellant and had been engaged for more than 24 hours and that his wages were paid on a monthly basis and beyond the period allowed for a casual employee. Consequently, the Trial Court held that by operation of Section 37 of the Employment Act the Respondent’s casual employment automatically converted into term employment, thereby entitling him to the statutory protections afforded under the Act. The Appeal 8. Dissatisfied with the decision of the Trial Court, the Appellant lodged the present Appeal, advancing the following six (6) grounds in support thereof: 1) THAT the Learned Magistrate erred in law and fact by finding for a Claimant who, without any reasonable explanation or leave of the Court, failed to appear to prosecute her claim. 2) THAT the Learned Magistrate erred in law and fact in making a finding that the Respondent worked continuously from 1993 contrary to documentary evidence before the Court.in reaching 3

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3) THAT the Learned Magistrate erred in law and fact in reaching the conclusion that the Appellant deducted dues of NSSF from the Respondent’s wages without any proof and further failing to appreciate that membership to NSSF is retained by a member regardless of the number of times the member may change employment. 4) THAT the Learned Magistrate erred in law and fact by awarding amounts that were neither enumerated nor explained. 5) THAT the Learned Magistrate erred in law and fact by imputing an admission to the Claim by the Appellant contrary to the evidence of the Appellant’s witness and further by shifting the burden of proof from the Respondent to the Appellant in an apparent claim for liquidated damages. 6) THAT the Learned Magistrate erred in law and fact for disregarding uncorroborated documentary evidence tendered by the Appellant, thus showing open bias against the Appellant. 9. Consequently, the Appellant prays that the Judgment of the Trial Court delivered on 23rd April 2025, together with all consequential orders and the decree, be set aside and an order do issue dismissing the Respondent's claim in 4

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Murang'a CMELRC Cause No. 16 of 2020 in its entirety. The Appellant further seeks the costs of both the Appeal and the proceedings before the Trial Court. The Submissions 10.The Appeal was canvassed by way of written submissions. On its part, the Appellant submitted that there was no evidence to support the Trial Court’s finding that the Respondent had worked for it continuously from 1980 to 2020. It contended that although it may initially have been reflected as the Respondent’s employer in his NSSF statement, that fact did not establish that the employment relationship persisted throughout the entire period in question. 11.The Appellant further maintained that the Respondent’s engagement was intermittent. It contended that, even if the nature of the engagement was such as to warrant conversion into a regular contract of service, the Respondent would nonetheless not be entitled to the benefits claimed. 12.On the other hand, the Respondent submitted that having asserted and proved that he was employed by the Appellant for over 10 years, the burden shifted to the Appellant to prove that he had been engaged on specific terms of employment, in accordance with Sections 9, 10 and 11 of the Employment Act. He further submitted that even if he was a casual employee, it was incumbent 5

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upon the Appellant to demonstrate compliance with the relevant provisions of Section 37 of the Employment Act. That similarly, where there had been any change in the terms of his employment, the Appellant was required to demonstrate that he had been duly notified pursuant to Section 13 of the Employment Act. 13.The Respondent contended that the muster roll produced by the Appellant was unreliable, as it contained missing pages and dates and did not disclose the terms upon which he had been engaged. In his view, the muster roll was therefore of little evidentiary value. 14.It was further submitted that the nature of the Respondent’s engagement as a Security Guard (Watchman) undermined the Appellant’s assertion that he was engaged intermittently and only during peak seasons, as opposed to off-peak periods. 15.Referencing the case of Kenyatta University v Maina (Civil Appeal 261 of 2020) [2022] КЕСА 1201 (KLR), the Respondent posited that an employer cannot mask itself from any liabilities appurtenant to their unfair and unlawful labour practices by holding employees under the guise of there being peak and off-peak seasons. 6

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Analysis and Determination 16.As this is a first appeal, 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. In undertaking that exercise, however, the Court must remain mindful that it neither saw nor heard the witnesses testify and should therefore accord due deference to the Trial Court's findings on matters of credibility. This principle was aptly restated in the case of Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR. 17.Being mindful of the Court's mandate on a first appeal, and upon considering the grounds set out in the Memorandum of Appeal, the Record of Appeal in its entirety, the rival submissions and the applicable law, the Court has isolated the following issues for determination: a) Whether the Trial Court erred in finding that the Respondent's engagement as a casual employee had automatically converted into a term contract; 7

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b) Subject to the determination of issue (a), whether the reliefs awarded to the Respondent by the Trial Court are sustainable in law. Conversion of the Respondent’s employment to a term contract 18.Before the Trial Court, the Respondent maintained that he was in the continuous employment of the Appellant from 16th September 2003 until 15th April 2020, when he resigned from employment. On the other hand, the Appellant disputed the alleged continuity of the employment relationship. 19.In support of its position, the Appellant produced muster rolls covering the period between December 2011 and August 2019. The records show that in December 2011, the Respondent worked for 11 days. Similarly, in December 2012, the Respondent worked for 11 days. 20.As regards the year 2018, the muster rolls indicate that the Respondent worked for 16 days between 21st August and 5th September 2018, 11 days in October 2018, 17 days between 21st November and 5th December 2018, and a further 13 days between 6th and 18th December 2018. 8

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21.Under Section 2 of the Employment Act, a casual employee is defined as follows: “A person the terms of whose engagement provide for his payment at the end of each day and who is not engaged for a longer period than twentyfour hours at a time.” 22.In essence, a casual employee is one whose engagement is on a day-to-day basis, with each engagement not exceeding 24 hours. Under Section 35(1)(a) of the Employment Act, such employment is terminable by either party at the close of the day without the necessity of notice. 23.Upon re-evaluating the muster rolls produced before the Trial Court, this Court notes that, on certain occasions between December 2011 and December 2018, the Respondent rendered services continuously for periods exceeding 24 hours. 24.Indeed, the Trial Court similarly found that the Respondent had worked for periods exceeding the statutory duration of casual employment and that his wages were paid on a monthly basis, thereby falling outside the parameters of casual employment as contemplated under the Employment Act. 9

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25.On the basis of that finding, the Trial Court concluded that the Respondent's casual engagement had, by operation of law, converted into term employment and was consequently protected under Section 37 of the Employment Act. 26.The foregoing finding raises the question whether the Respondent’s occasional periods of work exceeding 24 hours resulted in the conversion of his engagement into a term contract pursuant to Section 37 of the Employment Act. 27.Section 37 of the Employment Act provides as follows: [37](1) Notwithstanding any provisions of this Act, where a casual employee— (a) works for a period or a number of continuous working days which amount in the aggregate to the equivalent of not less than one month; or (b) performs work which cannot reasonably be expected to be completed within a period, or a number of working days amounting in the aggregate to the equivalent of three months or more, the contract of service of the casual employee shall be deemed to be one where wages are paid monthly and section 35(1)(c) shall apply to that contract of service. 10

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(2) In calculating wages and the continuous working days under subsection (1), a casual employee shall be deemed to be entitled to one paid rest day after a continuous six days working period and such rest day or any public holiday which falls during the period under consideration shall be counted as part of continuous working days. (3) An employee whose contract of service has been converted in accordance with subsection (1), and who works continuously for two months or more from the date of employment as a casual employee shall be entitled to such terms and conditions of service as he would have been entitled to under this Act had he not initially been employed as a casual employee. (4) Notwithstanding any provisions of this Act, in any dispute before the Industrial Court on the terms and conditions of service of a casual employee, the Industrial Court shall have the power to vary the terms of service of the casual employee and may in so doing declare the employee to be employed on terms and conditions of service consistent with this Act. (5) A casual employee who is aggrieved by the treatment of his employer under the terms and conditions of his employment may file a complaint with the labour officer and section 87 of this Act shall apply. 11

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28.Fundamentally, 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. 29.Applying the foregoing statutory provisions to the facts of this case, this Court is not persuaded that the Respondent's engagement was converted into a term contract. This is for the reason that the evidence on record does not demonstrate that the Respondent worked continuously for a period aggregating to not less than one (1) month, as contemplated under Section 37 of the Employment Act. 30.It follows, therefore, that Section 35(1)(c) of the Employment Act did not apply to the Respondent's contract of service by virtue of Section 37. 31.Accordingly, this Court finds that the learned Trial Magistrate erred in holding that the Respondent's casual engagement had, by operation of law, converted into a term contract under Section 37 of the Employment Act. 32.Having so found, the reliefs awarded by the Trial Court, including unpaid house allowance, payment in lieu of accrued leave, underpayments, and unpaid overtime cannot be sustained and are hereby set aside. 12

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33.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. 34.Each party shall bear its own costs. DATED, SIGNED and DELIVERED at NYERI this 25th day of September 2026. ……………………………… STELLA RUTTO JUDGE In the presence of: For the Appellant Mr. Kimani For the Respondent Mr. Wanyangu instructed by Mr. Namada Court Assistant Ndati ORDER In view of the declaration of measures restricting Court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent direction of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open Court. In permitting this course, this Court had been guided by Article 159(2)(d) of the 13

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Constitution which requires the Court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this Court the duty of the Court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes. STELLA RUTTO JUDGE 14

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