https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1917

Ayuma v Alexandria Cancer Centre & Palliative Care Hospital (Employment and Labour Relations Appeal E007 of 2025) [2026] KEELRC 1917 (KLR) (3 July 2026) (Judgment) Neutral citation: [2026] KEELRC 1917 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nakuru Employment and Labour Relations Appeal E007 of 2025 AN Mwaure, J July 3, 2026 Between Elizabeth Damaris Ayuma Appellant and Alexandria Cancer Centre & Palliative Care Hospital Respondent (Being an Appeal from the Judgment and Decree of the Honourable K. Kibelion, Principal Magistrate, delivered on 5th February 2025 in Nakuru MCELRC No. 162 of 2020) Judgment 1.The Appellant, being dissatisfied with the judgment and decree of Honourable Principal Magistrate K. Kibelion, filed this appeal vide a Memorandum of Appeal dated 19th February 2025 on the grounds that: - 1.The learned magistrate erred in law and in fact in entering a partial judgment in favour of the Appellant, hence awarding the sum of Kshs.43,755.02/=. 2.The learned magistrate erred in law and in fact in finding that the Appellant was employed on a casual basis, whereas there was no such evidence tendered by the Respondent. 3.The learned magistrate erred in law and in fact in finding and admitting that the Appellant’s services was terminated on account of redundancy, but failed to hold that the redundancy process as laid out under the Employment Act was not duly followed by the Respondent 4.The learned magistrate erred in law and in fact in failing to find that the Appellant was entitled to redundancy dues as provided for under the Employment Act. 5.The learned magistrate erred in law and in fact in finding that the redundancy letter was in writing in compliance with the requirements of the Employment Act, whereas it was not in compliance with the provisions of the said Act. 6.The learned magistrate erred in law and in fact in failing to recognize the difference between a notice for unfair termination and a letter for redundancy, hence holding that the notice issued was not sufficient and did not constitute proper notice, hence the award for one month pay in lieu of notice, but entirely ignoring the redundancy dues, 7.The learned magistrate erred in law and in fact in finding that the Appellant was not entitled to annual leave and severance pay on the ground that the Appellant was a casual before they become a substantive employee and that her services were terminated before the lapse of one year. 8.The learned magistrate erred in law and in fact in finding that the Appellant failed to prove the exact public holidays worked, hence the prayer failed hence shifting the burden of proof from the Respondent to the Claimant. 9.The learned magistrate erred in law and in fact in ignoring and or failing to award compensation under section 49(1) (c) of the Employment Act without giving any reasons whatsoever. 10.The learned magistrate erred in law and in fact in failing to take into account the pleadings, evidence, testimony and submissions of the Appellant when making his findings and decisions. 11.The learned magistrate erred in law and in fact in entering a partial judgment in favour of the Appellant 2.The Appellant prays that:a.The Appeal be allowed.b.The judgment be entered in favour of the Appellant as prayed in the trial court.c.The Respondent be ordered to pay costs of this appeal and the trial court with interest at the court’s rate. 3.The Appeal was disposed of by way of written submissions. Appellant’s submissions 4.The Appellant submitted that the evidence showed that she worked continuously for the Respondent from February 2017 to July 2019 with structured hours and was even issued an appointment letter in October 2018. Under section 37 of the Employment Act, continuous service beyond one month or work lasting more than three months converts casual employment into a term contract with monthly wages. Since the Appellant served for over two years, she met this statutory threshold and could not be deemed a casual employee. The Court of Appeal in Nanyuki Water & Sewage Company Limited v Benson Mwiti Ntiritu & 4 others [2018] KECA 196 (KLR) defined casual employment as engagement not exceeding 24 hours with daily payment, while in Silas Mutwiri v Haggai Multi-Cargo Handling Services Limited [2013] KEELRC 939 (KLR), the court emphasized that continuous service beyond three months automatically converts casual employment into contract status. Therefore, the trial court’s finding that the Appellant remained a casual employee was erroneous and contrary to law. 5.The Appellant submitted that the Respondent’s claim of redundancy, and yet was unlawful because it failed to comply with the mandatory requirements of Section 40 of the Employment Act, which include notifying the union or employee and the Labour Officer at least one month in advance, applying fair selection criteria, and paying accrued leave, notice, and severance dues. Instead, she was given only one week’s notice, no Labour Officer was informed, no selection process was undertaken, and she was denied her redundancy entitlements. The Respondent relied on Kenya Airways Limited v Aviation & Allied Workers Union Kenya & 3 others [2014] KECA 403 (KLR), which held that redundancy must be both substantively justified and procedurally fair. The Appellant submits that the process was defective and amounted to unfair termination. 6.The Appellant submitted that the Respondent’s witness admitted that no documentary evidence was produced to show compliance with redundancy procedures. Under section 43 of the Employment Act, the employer bears the burden of proving the reasons for termination, and if they fail to do so, the termination is deemed unfair. Since the Respondent did not provide proof of following the statutory requirements, the redundancy process was unlawful, procedurally flawed, and amounted to unfair termination contrary to section 40 of the Employment Act. 7.The Appellant argued that once redundancy is established, the employee’s rights under section 40 of the Employment Act, including notice or pay in lieu, severance pay of at least fifteen days per year of service, and accrued leave, are mandatory, not discretionary. The trial magistrate erred by acknowledging redundancy yet failing to award these statutory dues, amounting to a misapplication of the law. The Appellant relied on the cases of Thomas De La Rue (K) Ltd v Omutelema [2013] KECA 492 (KLR) and Kenya Airways Ltd v Aviation & Allied Workers Union Kenya & 3 others(supra), the Appellant contended that non‑compliance with section 40 of the Employment Act renders termination unfair both substantively and procedurally. Since no evidence of severance payment or computation of redundancy dues was produced, the Appellant was deprived of her lawful entitlements, and the appellate court is urged to correct this error by awarding full redundancy dues. 8.The Appellant contended that the trial court erred by failing to award compensation for unfair termination, contrary to section 49(1)(c) of the Employment Act, which empowers courts to grant up to twelve months’ salary guided by the factors in section 49(4), including length of service, circumstances of termination, and mitigation of loss. The magistrate neither considered these statutory factors nor gave reasons for declining compensation, despite procedural unfairness alone warranting such relief. The Appellant cited the case of Kenfreight (E.A) Limited v Benson K. Nguti [2016] KECA 409 (KLR), where the Court of Appeal held that a finding of unfair termination obliges the court to assess compensation. The Appellant argued that her two years of demanding service and termination without due process justify maximum or near‑maximum compensation. 9.The Appellant submitted that the trial court erred in dismissing her claim for public holidays worked, as this improperly shifted the burden of proof onto her. Under section 10(7) of the Employment Act, where an employer fails to produce a written contract or particulars, the obligation to prove or disprove alleged terms rests with the employer. Further, section 74 of the Employment Act requires employers to keep and produce employment records such as duty rosters and payrolls. In Silas Mutwiri v Haggai Multi-Cargo Handling Services Ltd(supra), the court held that omissions in record-keeping must benefit the employee, with their account taken in good faith. The Appellant had provided detailed and uncontroverted evidence of her working hours, shift patterns, and public holidays worked, yet the Respondent failed to produce records. Accordingly, the trial court disregarded credible evidence and ignored statutory obligations, and the claim for public holidays ought to have been allowed. 10.The Appellant submitted that the trial magistrate failed to properly evaluate the evidence, misrepresented her employment status, and ignored material facts such as her working hours, resulting in conclusions inconsistent with the law. As a first appellate court, this Honourable Court is guided by the principles in Selle v Associated Motor Boat Co. [1968] EA 123 and Sumba v Mala & Another [2026] KEHC 1805 (KLR), which require a fresh re‑evaluation of the record and independent findings, while making allowance for not having seen the witnesses. 11.Since the judgment was against the weight of evidence and based on misdirection, the Appellant urges this Honourable Court to intervene, rectify the injustice, and allow the appeal with full relief. Respondent’s submissions 12.The Respondent submitted that the trial magistrate properly evaluated the evidence and distinguished between the Appellant’s initial casual engagement and her later substantive employment under a written contract dated 18th October 2018. Relying on section 37 of the Employment Act, the Respondent submitted that casual service does not automatically convert into permanent employment, citing the case of Nanyuki Water & Sewerage Co. Ltd v Benson Mwiti Ntiritu(supra), where the court cautioned against automatic conversion merely due to service beyond 24 hours, and distinguishing Silas Mutwiri v Haggai Multi-Cargo Handling Services Ltd(supra) on grounds that in this case there was a clear contractual transition. 13.On redundancy, the Respondent contended that the trial court acknowledged the procedural defect and remedied it by awarding one month’s salary in lieu of notice, distinguishing Thomas De La Rue (K) Ltd v David Opondo Omutelema (supra). 14.Regarding severance and annual leave, the Respondent submitted that the Appellant’s employment under the contract lasted less than a year, and no evidence was produced to prove accrued leave or severance, invoking Kenya Airways Ltd v Aviation & Allied Workers Union Kenya & 3 Others(supra) and emphasizing that employment dues are special damages which must be specifically pleaded and strictly proved, as held in Hahn v Singh [1985] KLR 716 and Coast Bus Service Ltd. v. Sisco Murunga Ndanyi & 2 others[2012] eKLR in support of that proposition. 15.On public holidays, the Respondent submitted that the Appellant failed to lay a factual foundation, citing the cases of CMC Aviation Limited v Mohammed Noor [2015] KECA 775 (KLR) and Agricultural Finance Corporation v Lengetia Limited & Jack Mwangi [1985] KECA 58 (KLR), stressing that courts cannot act on speculation. 16.Finally, on compensation under section 49(1)(c) of the Employment Act, the Respondent submitted that the award is discretionary, not automatic, and the trial magistrate exercised proper discretion by awarding notice pay, salary, house allowance, and costs, citing the cases of Kenfreight (EA) Ltd v Benson K. Nguti(Supra), Judicial Service Commission v Shollei & Another [2014] KECA 334 (KLR), and Ol Pejeta Ranching Limited v David Wanjau Muhoro [2017] KECA 329 (KLR) in support in that proposition. 17.Overall, the Respondent maintains that the judgment was balanced, evidence-based, and legally sound, and urged dismissal of the appeal. Analysis and determination 18.Being the first appeal, the court relied on the case of Odera t/a AJ Odera & Associates v Machira t/a Machira & Co Advocates [2013] KECA 208 (KLR), where the Court of Appeal stated as follows:“This being a first appeal, we are reminded of our primary role as a first appellate court, namely, to re-evaluate, re-assess and reanalyse the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way. See the case of Kenya Ports Authority versus Kuston (Kenya) Limited (2009) 2EA 212, wherein the Court of Appeal held inter alia that:“On a first appeal from the High Court, the Court of Appeal should reconsider the evidence, evaluate it itself and draw its own conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect. Secondly that the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence.” 19.In Selle v Associated Motor Boat Co(supra) the court stated as follows:“An appeal from the High Court is by way of re-trial, and the Court of Appeal is not bound to follow the trial judge’s finding of fact if it appears either that he failed to take account of circumstances or probabilities, or if the impression of the demeanour of a witness is inconsistent with the evidence generally.An appeal to this court from a trial by the High Court is by way of retrial, and the principles upon which this court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself, and draw its own conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.” 20.Having carefully considered the record of appeal and submissions by both counsels, the issue for determination before this Honourable Court is whether trial court erred in law and fact in his judgment and awards. 21.Section 37 of the Employment Act provides as follows:“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.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.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.Notwithstanding any provisions of this Act, in any dispute before the Employment and Labour Relations Court on the terms and conditions of service of a casual employee, the Employment and Labour Relations 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.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 86 of this Act shall apply.” 22.In Nanyuki Water & Sewage Company Limited v Benson Mwiti Ntiritu & 4 others(supra) the Court of Appeal stated as follows:“As long as such contracts are compliant with the law, the courts have no reason to interfere. The case pleaded by the respondents in this case is 'casual employment'.A “Casual employee” is defined in section 2 of the Act as:“.. an individual 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 twenty-four hours at a time”.Casual employment thus entails engagement for a period not exceeding 24 hours at a time and payment made at the end of the day.” 23.Still in Nanyuki Water & Sewage Company Limited v Benson Mwiti Ntiritu & 4 Others(supra), the Court of Appeal held that the Appellant’s refusal to testify only strengthened the Respondents’ account of events. On the evidence presented, the trial court was correct to conclude that the Respondents had been engaged as casual employees but had in fact worked continuously for periods exceeding one month, performing tasks that could not reasonably be completed within three months. By operation of section 37 of the Employment Act, their contracts of service were deemed converted into contracts where wages are paid monthly, thereby attracting the protections of section 35(1)(c). Accordingly, the court held, as did the trial court, that the Respondents’ employment had assumed permanency under the law. 24.In Silas Mutwiri vs Haggai Multi-Cargo Handling Services Limited (Supra), the court stated as follows:“The Employment Act, 2007, has now created a fundamental shift from the previous Employment Act, Cap 226, with regard to who a casual employee is. This followed many decades of abuse, violation and disregard of the rights of workers who were classified as casual workers or casual labourers. This shift has extensive ramifications as any employer who employs an employee for more than three (3) consecutive months and or is on a job that is not expected to end or be finished within this time, the law creates a mandatory provision and converts such casual employment into term contract status.” 25.Section 40(1) of the Employment Act provides that an employer is prohibited from terminating employment on account of redundancy unless strict compliance is observed.Specifically, the employer must issue prior written notice of at least one month to the relevant trade union and the area Labour Officer where the employee is unionized, or to the employee personally and the Labour Officer where the employee is not unionized. In selecting employees to be declared redundant, the employer must have due regard to seniority, skill, ability, and reliability. Where a collective agreement exists, the employer must not disadvantage the employee on account of union membership. Any accrued leave must be paid in cash, and the employee must be given not less than one month’s notice or wages in lieu thereof. Finally, severance pay at the rate of not less than fifteen days’ wages for each completed year of service must be paid. Thus, compliance with these conditions is mandatory, and failure to adhere renders the redundancy process unlawful and procedurally unfair. 26.The Appellant in this case was employed by the Respondent as a nurse aid on a casual basis from February 2017 to July 2019 until she was terminated. The Respondent argued that it properly terminated the Appellant and properly compensated. The trial magistrate held that Appellant’s services were terminated on account of redundancy. 27.On that score, the learned trial magistrate correctly found that the Appellant’s employment had, by operation of Section 37 of the Employment Act, converted from casual to permanent status. Having served continuously and under structured terms, her contract could no longer be classified as casual. The termination was effected on account of redundancy, yet the Respondent failed to comply with the mandatory safeguards under Section 40 of the Employment Act, most notably by neglecting to notify the Labour Office of the intended redundancy and failing to present the selection criteria as to who to terminate on the basis of redundancy. 28.Further, the Respondent did not explain the criteria of selection of the employees who were to be rendered redundant. The employee as per the law should also be paid severance pay, leave pay and one month salary in lieu of notice. 29.The Appellant was also not notified of the intended redundancy which omission rendered the process procedurally defective and substantively unfair. Accordingly, this court affirms that the Appellant was a permanent employee and unlawfully subjected to redundancy, and the trial magistrate’s finding on conversion and unlawful termination was both sound in law and supported by evidence. The Appellant was unlawfully and unprocedurally terminated and trial court’s judgment is therefore upheld. 30.Having correctly found that the Appellant’s employment had converted from casual to permanent status and that her termination on account of redundancy was procedurally defective, this court will address the trial magistrate’s award as follows: - 1.One month salary in lieu of notice - Kshs.14,969/= 2.The 11 days worked in July 2019 - Kshs.6,332/= 3.I will award the Appellant leave for one year since her casual employment converted to permanent pay upon expiry of one (1) month - Kshs.14,969/= 4.The Public holiday claims are in abstract and no factual evidence is tabled so the same is declined. 5.The house allowance is awarded at - Kshs.22,453/50 6.Hospital refund is not proved and is declined. 7.The Appellant is entitled to two (2) years severance pay at - Kshs.14,969/= 8.She was unprocedurally terminated. I award her two months salary equivalent of her salary - Kshs.29,938/=Total award is - Kshs.103,630/05 31.Costs of lower court and of this Appeal are awarded to the Appellant. 32.Interest is awarded on this revised award at the rate of 14% per annum from date of this judgment till full payment. Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAKURU THIS 3RD DAY OF JULY, 2026.ANNA NGIBUINI MWAUREJUDGEORDERIn 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 directions 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 has been guided by Article 159(2)(d) of the 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.A signed copy will be availed to each party upon payment of Court fees.ANNA NGIBUINI MWAUREJUDGE