https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2028

Kadoti v Steel Makers Ltd (Cause 856 of 2017) [2026] KEELRC 2028 (KLR) (25 June 2026) (Judgment) Neutral citation: [2026] KEELRC 2028 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Mombasa Cause 856 of 2017 K Ocharo, J June 25, 2026 Between Benjamin Ndoro Kadoti Claimant and Steel Makers Ltd Respondent Judgment 1.This suit traces its origin to a Memorandum of Claim dated 16th October 2016, filed in this Court on 13th November 2017, by which the Claimant, Benjamin Ndoro Kadoti, sued his former employer, the Respondent, Steel Makers Limited, alleging wrongful, unfair and unprocedural dismissal from employment, refusal to pay terminal dues, and underpayment. The Respondent entered appearance and filed a Response to the Memorandum of Claim dated 1st October 2018, filed on 2nd October 2018, in which it denied liability in its entirety and asserted that the Claimant was, at all material times, a casual employee engaged intermittently and not a continuous or term employee as pleaded. 2.The pleadings were thereafter amended. The Memorandum of Claim was amended on27th January 2020. The Respondent's Response to the Memorandum of Claim was correspondingly amended, the Further Amended Response to the Memorandum of Claim being dated 19th January 2022. It is upon this final set of pleadings that the parties went to trial. 3.At the hearing, the parties adopted their respective filed witness statements as their evidence in chief, subject to cross-examination and re-examination. The Claimant testified as the sole witness in support of his case. The Respondent called one witness, Everson Muchiri, a Quality Controller and Supervisor in its Rolling Mill Department, under whom the Claimant's supervisors served. 4.At the close of the hearing, this Court gave directions and timelines for the filing of final written submissions by both parties. Despite the timelines granted, the Claimant did not file any submissions. The Respondent, through the firm of Kamoti Omollo & Company Advocates, filed its Written Submissions. This Judgment therefore follows upon a full evaluation of the pleadings filed by both parties, the evidence on record, and the Respondent's Written Submissions, there being none filed on behalf of the Claimant notwithstanding the opportunity accorded to him to do so. B. The Claimant's Case 5.The Claimant's case, as set out in his Amended Memorandum of Claim and his witness statement, is that he was employed by the Respondent as a Tongsman, stationed at Stand No. 6 within the Respondent's Melting Department at its Mariakani works, from 6th March 1995 to 13th June 2017, on a continuous and uninterrupted basis. He pleaded that he was earning a salary of Kshs. 13,754.00 per month at the time of the termination of his employment, that he was never issued with a written contract of employment for the entire period, and that his employment was wrongfully, unfairly and unprocedurally terminated on 13th June 2017, when he was abruptly told by a supervisor to leave the Respondent's premises without notice, without a hearing, and without payment of his terminal dues. 6.In his witness statement, the Claimant averred that he used to earn an average of Kshs. 529.00 per day, accumulating to Kshs. 13,754.00 per month, and that it would only be reasonable for him to assume that his termination was occasioned by a suit he had filed against the Respondent to recover damages for injuries he suffered in a workplace accident. 7.On the strength of the foregoing, the Claimant sought terminal dues and reliefs totalling Kshs. 616,264.00, comprising one month's salary in lieu of notice, annual leave accrued over a claimed period of 22 years and 3 months, compensation for unprocedural, wrongful and unfair termination under sections 49 and 50 of the Employment Act, unpaid salary for June 2017, service pay, punitive damages, and a certificate of service, together with costs and interest. 8.It is, however, the evidence elicited from the Claimant himself under cross-examination that is of central importance to the determination of this cause. The Claimant admitted that he was a casual employee, that he earned a daily wage, and that he was paid on a daily basis; that whenever he was paid, he would sign for such payments. Although he had pleaded a claim for unpaid salary in his Amended Memorandum of Claim, he admitted that there was, in fact, no outstanding unpaid salary owed to him at the time of the cessation of his engagement with the Respondent. He further asserted, in terms directly contrary to his own pleaded case, that he never at any time earned a monthly salary of Kshs. 13,754.00. He conceded that whenever the Respondent company lacked raw material for production, casual workers such as himself could not work or report to work. 9.The Claimant further admitted that although he alleged he was terminated on 13th June2017 on account of a case he had filed against the Respondent, he had neither pleaded this allegation nor given any particulars or details of the said case. He admitted that the attendance list produced in evidence by the Respondent showed that he was last paid for work done on 6th June 2017, and that the last day he worked was 6th June 2017. He confirmed that, as a casual worker, he was paid Kshs. 529.00 per day, and he explicitly admitted that he could work intermittently, only whenever there was production material available at the Respondent's premises. C. The Respondent's Case 10.The Respondent's case, as pleaded in its Further Amended Response to the Memorandum of Claim, is a full traverse and denial of liability. The Respondent denied that it employed the Claimant on a continuous basis from 6th March 1995 to 13th June 2017, and denied that it ever paid him a monthly salary of Kshs. 13,754.00. It averred that on diverse days in January 2015 the Claimant took up casual welding jobs in its transport department until he disappeared in or about February 2016; that he resurfaced at its premises at or around the start of 2017 and, on diverse dates from January 2017, worked on and off as and when it pleased him to seek casual engagement, until 6th/7th June 2017, when he last worked and thereafter never returned. It averred that its engagement of the Claimant was strictly casual, intermittent, and entirely subject to his own availability and discretion, and that it never at any time terminated his employment. The Respondent maintained that the Claimant had failed to discharge the burden placed upon him under section 47(5) of the Employment Act, 2007 to prove unfair termination, and further pleaded that the claim for annual leave allegedly accrued over 22 years and 3 months was, in any event, time-barred under section 90 of the Employment Act. The Respondent prayed that the suit be dismissed with costs. 11.In his witness statement, Everson Muchiri, the Respondent's Quality Controller and Supervisor in the Rolling Mill Department, stated that the Claimant was a casual employee who would be engaged to work for the Respondent from time to time, subject to the availability of work, and that casual workers, including the Claimant, reported to supervisors who in turn reported to him. He stated that the Claimant would be paid his wages on a daily basis, at the rate of Kshs. 529.00 for eight hours of work, and that the Claimant did not work for the Respondent continuously between 1995 and 2017 as alleged. He maintained that the Claimant, after 7th June 2017, simply refused to come to work for reasons unknown to the Respondent and never returned, and that the Respondent did not terminate his employment. 12.Under cross-examination, the Respondent's witness reiterated that the Claimant was a casual worker earning a daily wage of Kshs. 529.00, and that casual workers were placed under supervisors, who were in turn under the witness. He asserted that the Claimant did not work between 6th and 13th June 2017, as the Claimant had alleged, not because his services had been dispensed with, but because the Respondent did not have production material available at that time. D. Issues For Determination 13.The following issues fall for determination:a.Whether the Claimant was, at all material times, a casual employee, or a term/continuous employee, of the Respondent;b.Whether the Claimant's employment was wrongfully and/or unfairly terminated by the Respondent;c.Whether the Claimant is entitled to the reliefs pleaded in the Amended Memorandum of Claim; andd.Who bears the costs of the suit. E. Analysis And Determination 14.This Court has given careful consideration to the pleadings filed by both parties, the evidence adduced at the trial, including the admissions made by the parties' respective witnesses under cross-examination, and the Respondent's Written Submissions, there being none filed by the Claimant despite the timelines granted to him. All of the foregoing have been considered and applied in arriving at the determination set out below. 15.The starting point in the resolution of this dispute is the legal status of the Claimant's engagement with the Respondent, this being the fulcrum upon which the entirety of his claim turns. Section 2 of the Employment Act, 2007 defines a “casual employee” as “a person whose method of engagement is that he is paid wages at the end of each day and is not engaged for a longer period than twenty-four hours at a time”. It is common ground, borne out overwhelmingly by the Claimant's own admissions under cross-examination, that this is precisely the character of the engagement between the Claimant and the Respondent: he was paid a daily wage, paid daily, signed for such daily payments, and could only work when production material was available. 16.A casual employee, by the very nature of that mode of engagement, does not enjoy the full suite of rights and protections that the Employment Act, 2007 extends to an employee engaged under a term or continuous contract of service, whether as to notice of termination, the elaborate procedural protections against unfair termination, severance and service pay computed on length of continuous service, or annual leave computed on twelve months of continuous service, save where the casual engagement has, by operation of section 37 of the Act, been converted into a term contract. This distinction is well settled in our courts. In Kenyatta University v Esther Njeri Maina [2022] eKLR, the Court of Appeal, while affirming that section 37 of the Act exists precisely to protect an employee who in truth works continuously from being kept indefinitely in the casual category and thereby denied the rights of a permanent employee, was equally clear that this protection is only triggered upon proof that the employee worked continuously for a period of, or exceeding, one month, or performed work not reasonably completable within three months; absent such proof of continuity, the employee remains, in law, a casual employee, and does not acquire the rights and protections reserved for employees under term contracts of service. 17.As to the burden of proof, section 47(5) of the Employment Act, 2007 provides that “for any complaint of unfair termination of employment or wrongful dismissal, the burden of proving that an unfair termination of employment or wrongful dismissal has occurred shall rest on the employee, while the burden of justifying the grounds for the termination or dismissal shall rest on the employer”. This Court associates itself with the holding of Manani, J. in Galgalo Jarso Jillo v Agricultural Finance Corporation, ELRC Cause No. 13 of 2019, [2021] eKLR, that under section 47(5) of the Employment Act, it is only where the employee discharges his burden of proving that there was unfair termination of employment that the employer must then justify the reasons leading to the termination. It follows, necessarily, that the employee bears the primary evidential burden of establishing the fact and character of his employment and of the termination complained of, and that it is only once this threshold burden is discharged that the burden shifts to the employer to justify the reason for and procedure adopted in the termination. Where an employee fails at the first hurdle, to establish the very employment relationship and status he pleads, the enquiry does not proceed to an examination of the employer's justification, for there is, at that point, nothing for the employer to justify. 18.Applying the foregoing to the case before it, this Court is satisfied that the Claimant has, by his own evidence, comprehensively undermined the case he pleaded. He pleaded that he was a continuous employee of over twenty-two years' standing, earning a fixed monthly salary of Kshs. 13,754.00, who was wrongfully and unfairly dismissed from a term position on 13th June 2017. Yet under cross-examination, he admitted, without equivocation, that he was a casual employee; that he was paid a daily wage of Kshs. 529.00; that he was paid daily and signed for each such payment; that he never at any time earned a monthly salary of Kshs. 13,754.00; and that, whenever the Respondent lacked production material, casual workers such as himself simply could not work or report to work. These are not peripheral matters going merely to quantum; they go to the very root of the employment relationship the Claimant asked this Court to find as a fact. 19.It is further notable that the Claimant admitted there was no outstanding unpaid salary owed to him as at the time he stopped working for the Respondent, notwithstanding that he had pleaded a claim for unpaid salary for June 2017. The attendance list produced by the Respondent, which the Claimant did not dispute, shows that he was last paid for work done on 6th June 2017, the same date he admitted was his last day of work. This is inconsistent with his pleaded case that he worked until, and was dismissed on, 13th June 2017. 20.As to the Claimant's suggestion that his termination was linked to a suit he had filed against the Respondent arising from a workplace accident, this Court notes, as the Claimant himself admitted, that this allegation was never pleaded in the Amended Memorandum of Claim, nor were any particulars or details of the said case ever furnished. A party is bound by his pleadings, and a claim, or an aggravating allegation going to the character of a dismissal, cannot be sprung upon the opposite party and the Court for the first time in the witness box without having first been pleaded with reasonable particularity. This unpleaded assertion is accordingly disregarded. 21.The evidence of the Respondent's witness, Everson Muchiri, corroborates and is consistent with the Claimant's own admissions. He confirmed that the Claimant was a casual worker paid a daily wage of Kshs. 529.00, engaged under supervisors answerable to him, and that the Claimant's absence from work between 6th and 13th June 2017 was attributable to the unavailability of production material at the Respondent's premises during that period, and not to any act of termination by the Respondent. 22.On the totality of this evidence, this Court finds as a fact that the Claimant was, at all material times, a casual worker within the meaning of section 2 of the Employment Act, 2007, who reported to and worked for the Respondent whenever production material was available, and who was paid a daily wage of Kshs. 529.00, and not a term or continuous employee earning a fixed monthly salary of Kshs. 13,754.00 as he pleaded. 23.Having found that the Claimant was a casual employee, it follows that he did not enjoy the rights and protections extended under the Employment Act, 2007 to employees engaged on term or continuous contracts of service, save to the extent that his casual engagement may have been converted into a term contract under section 37 of the Act. No evidence was placed before this Court to establish that the Claimant worked continuously for a period of, or exceeding, one month, or performed work that could not reasonably have been completed within three months, so as to trigger such conversion; indeed, the Claimant's own evidence, that he could only work intermittently whenever production material was available, is the very antithesis of continuity of engagement. The burden of proving such continuity lay squarely on the Claimant, and he did not discharge it. 24.This position finds further support in the Respondent's Written Submissions, in which it was correctly submitted, with reference to the general burden of proof under sections 107 to 109 of the Evidence Act and the principle that he who alleges must prove, that the Claimant bore the burden of establishing continuous engagement before any entitlement founded on continuity, such as annual leave under section 28 of the Employment Act, could accrue to him, and that a claimant who fails to produce employment records, continuous payslips, or a contract of service demonstrating continuous engagement cannot be said to have discharged that burden. This Court finds that submission well made and applicable with equal force to the entirety of the Claimant's case, and not merely to the annual leave component thereof. 25.It follows that the Claimant, having pleaded and set out to prove that he was a term employee unfairly and wrongfully dismissed from a monthly-salaried position, but having instead, by his own admissions, established that he was at all material times a casual worker paid a daily wage, has failed to discharge the burden placed upon him under section 47(5) of the Employment Act, 2007. His case fails at that threshold, it being unnecessary for this Court to proceed further to interrogate the reasonableness or procedural fairness of any dismissal, there being no proven dismissal of the Claimant from any qualifying term employment in the first place. 26.As the Claimant was a casual worker, the reliefs he seeks, being one month's salary in-lieu of notice computed on an asserted monthly salary he admitted he never earned, annual leave accrued over 22 years and 3 months, compensation for unfair termination under sections 49 and 50 of the Act, unpaid salary which he admitted was not in fact outstanding, and service pay computed on a continuous-service formula, are reliefs that presuppose a term or continuous contract of employment which the Claimant has failed to prove and which, on his own evidence, never existed. None of these reliefs can, in the circumstances, be availed to him. F. Findings And Disposition 27.For the reasons set out above, this Court makes the following findings and final orders:(i)The Claimant was, at all material times, a casual employee of the Respondent within the meaning of section 2 of the Employment Act, 2007, engaged intermittently and paid a daily wage of Kshs. 529.00, subject to the availability of production material.ii.The Claimant has failed to discharge the burden placed upon him under section 47(5) of the Employment Act, 2007 to prove that he was a term employee who was unfairly and/or wrongfully terminated from such employment.iii.The Claimant is not entitled to any of the reliefs sought in the Amended Memorandum of Claim.iv.The Claimant's suit accordingly lacks merit and is hereby dismissed.v.The Claimant shall bear the Respondent's costs of the suit.It is so ordered. DATED, SIGNED AND DELIVERED AT MOMBASA THIS 25TH DAY OF JUNE 2026.OCHARO KEBIRAJUDGE