https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2395

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT** **APPEALS DIVISION** **APPEAL NO. E180 OF 2024** BETWEEN MARY NJOKI KUNGU…….…………….…………………...APPELLANT AND BOARD OF MANAGEMENT ALLIANCE HIGH SCHOOL…………………………………RESPONDENT (Being an appeal from the Judgment of the Chief Magistrate Court at Kikuyu (Honourable L. Gicheha (CM)) dated the 30th day of September 2021 in MCELRC/E045/2021) JUDGMENT *(Before Hon. Justice Abuodha Jorum Nelson)* 1. Through the Memorandum of Appeal dated 26th June 2024, the Appellant appeals against the entire Judgment of Honourable L. Gicheha (CM). The Appeal was based on the grounds that: 1. ***The learned trial Magistrate erred in law and fact in her finding that the Appellant was a casual worker despite evidence to the contrary.*** 2. ***The learned Magistrate erred in law and fact in disregarding and/or failing to consider the evidence before her in totality hence arrived at an erroneous determination.*** 3. ***The learned trial Magistrate erred in law and in fact in her finding that the Appellant’s employment was not unlawfully terminated.*** 4. ***The learned Magistrate erred in law and fact in failing to consider the written submissions by the Appellant on both the law and facts and the binding authorities therein hence arrived at an erroneous and unjust determination.*** 2. The Appellant therefore prayed that the judgment and decree made by the subordinate court in Kikuyu in Employment cause No. E045 of 2021 by Hon. L. Gicheha CM on 30th May 2024 be set aside and be substituted with an order allowing the Appellant’s claim as prayed in her Statement of Claim dated 23rd September 2021 with costs. 3. A brief factual background is that the Appellant was employed by the Respondent as a cook in its kitchen department in 2016 where she performed duties including cooking and cleaning. On 28th April 2018, while at work, the Appellant allegedly slipped and fell in the kitchen and sustained injuries to her leg. She was hospitalized and underwent surgery and resumed work after recovering from her injuries. 4. Sometime in January 2021, the Appellant experienced pain in the injured leg, sought medical treatment and was issued with a three-day sick leave note. The Appellant's case in the lower court was that when she returned to work, she was not allowed to resume her duties and was later informed that her employment had come to an end. Her claim was therefore for unfair termination. 5. The Respondent’s case on the other hand was that the Appellant was a casual employee, who was paid a daily wage which was computed and paid on a monthly basis. It was the Respondent’s case that it never terminated the services of the Appellant and that it was the Appellant who absented herself from work and only reported back to work more than five months later. 6. After considering the respective cases and submissions by counsel, the learned trial magistrate found that the Appellant had not proved her case, that she was a casual worker and dismissed the suit. This is the judgment appealed against by the Appellant. 7. The Appeal was disposed of by written submissions. Both parties complied and filed submissions. **APPELLANT’S SUBMISSIONS** 1. The Appellant’s Advocates Mbugua Ng’ang’a & Company Advocates filed written submissions dated 17th December, 2025 and on the issue of whether the learned magistrate erred in finding that the Appellant was a casual employee, counsel submitted that the trial court erred in law and fact by finding that the Appellant was a casual employee despite the evidence on record. Counsel relied on Sections 2, 10(7) and 37 of the Employment Act and submitted that although Section 2 defines a casual employee, Section 37 provides that casual employment converts into regular employment where an employee works continuously for at least one month or performs work that cannot reasonably be completed within three months. 2. Counsel submitted that it was not disputed that the Appellant was employed in 2016, was issued with a staff identity card and remained in the Respondent's employment until 2021. That the Respondent's witness confirmed that the Appellant worked continuously for periods exceeding one month and that, as a school cook, her duties were continuous during school terms. 3. Counsel argued that the issuance of a staff identity card, the Appellant's return to work after her injury in 2018 and the Respondent's admission that she resumed work until January 2021 all showed that she was not a casual employee. 4. Counsel further submitted that once the Respondent alleged that the Appellant was a casual employee, the burden of proving that fact rested on the Respondent under Section 10(7) of the Employment Act, but no evidence was produced to show that she had been engaged on casual terms. 5. It was argued that the Respondent only produced sign-in and sign-out registers and payment records for the period between January and June 2021, despite the Appellant having worked from 2016. That the learned magistrate erred in relying on the Appellant's 2020 bank statements, as that period coincided with the COVID-19 pandemic and closure of schools, making the payments during that period an unreliable basis for determining the nature of her employment. That if the Appellant had initially been employed as a casual employee, her employment had converted into regular employment under Section 37 of the Employment Act and relied on the case of ***Bett & 27 Others v County Government of Uasin Gishu & 2 Others [2023] KEELRC 1527 (KLR),*** where the Court held that casual employees who worked continuously became regular employees by operation of law. 6. On the issue of whether the Appellant was wrongfully and unfairly terminated and entitled to the reliefs sought, counsel submitted that the trial court failed to determine that issue after finding that the Appellant was a casual employee and urged this Court to consider them in determining the appeal. **RESPONDENT’S SUBMISSIONS** 1. The Respondent’s Advocates Lilan & Koech Associates, LLP filed written submissions dated 20th February, 2026 and on the issue of whether the learned magistrate erred in finding that the Appellant was a casual employee, counsel submitted that the trial court properly evaluated the evidence and correctly applied sections 2 and 37 of the Employment Act. Counsel submitted that Section 2 defines a casual employee while Section 37 sets out the circumstances under which casual employment converts into regular employment. It was submitted that the Appellant's own bank statements showed that she was never paid the alleged monthly salary of Kshs. 27,000 and that the same tallied with the Respondent's casual payroll records. 2. Counsel further submitted that the documents before the trial court showed that the Appellant was a casual employee and not a permanent employee. That the learned magistrate properly relied on the irregular amounts paid to the Appellant in different months in finding that she was not working on a monthly basis and therefore could not be said to have been unlawfully terminated. 3. Counsel also submitted that the Respondent's payroll records and payment vouchers showed that wages for casual employees were paid through K Unity Savings, which was the same payment channel reflected in the Appellant's bank statements. 4. Counsel relied on ***Peters v Sunday Post Ltd (1958) EA 424 and Mwanasokoni v Kenya Bus Services Ltd [1985] KECA 82 (KLR)*** and submitted that an appellate court should not interfere with the findings of fact made by a trial court unless they are based on no evidence, a misapprehension of the evidence or wrong principles. That an employee bears the burden of proving continuous employment before a casual contract can be converted under section 37 of the Employment Act (***West Kenya Sugar Company Limited v Chilande [2024] KEELRC 2119 (KLR))*** 5. That considering the irregular monthly payments, the sign-in and sign-out register used by casual employees and the Appellant's bank statements, the trial court did not err in finding that the Appellant was a casual employee. Consequently, the Appellant had failed to discharge the burden of proof under section 47(5) of the Employment Act to establish continuous employment capable of conversion under section 37. 6. On the issue of whether the Appellant was terminated from employment, counsel submitted that the Appellant was never terminated but had absconded duty. Counsel reiterated the submissions made before the trial court and relied on the case of ***Austin Opele Okunja v Senaca East Africa [2022] eKLR*** to submit that an employee seeking sick leave has a duty to notify the employer of the reasons for the absence. 7. It was submitted that the sick leave sheet produced by the Appellant was never received by the Respondent as it bore neither a stamp nor a signature acknowledging receipt. That even if the sick leave sheet had been served, which the same is denied, it only excused the Appellant from work for three days and did not explain her absence for about five months. Counsel also submitted that when the Appellant returned after the prolonged absence, the Respondent made efforts to assign her work but she declined to resume her duties. Counsel therefore submitted that the Appellant was not unlawfully terminated but had absconded duty and invites this Honourable Court to dismiss the appeal in its entirety with costs. **DETERMINATION** 1. The court has considered the grounds in the Memorandum of Appeal, the Record of Appeal and the submissions filed by the parties herein and authorities relied on and proceeds to analyse them as follows. 2. I have carefully reconsidered and evaluated the evidence on record. I have also considered the written submissions by the rival parties in this case. In my view, the issues for determination are as follows; 3. *Whether the Appellant’s* *service converted to a regular employee under Section 37 of the Employment Act;* 4. *Whether the Appellant was unfairly dismissed from employment by the Respondent* *and is entitled to relief.* ***Whether the Appellant’s service converted to a regular employee under Section 37 of the Employment Act;*** 1. It is not disputed that the Appellant was employed by the Respondent sometime in 2016 where she worked until January 2021 when the events giving rise to this dispute occurred. What is in dispute is the nature of that employment, with the Respondent maintaining that the Appellant was at all material times a casual employee, while the Appellant contends that the same was converted to a term contract by operation of Section 37 of the Employment Act. 2. A Casual employment is recognized under the Employment Act as a lawful and legitimate engagement. **Section 2 of the Employment Act**defines the term ***‘’casual employee’’*** as follows: - ***“Casual employee” means 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 twenty-four hours at a time.’’*** 1. The Act, however, equally recognises that such an engagement cannot continue indefinitely. For that reason, **Section 37 of the Employment Act** provides as follows: - ***“(1) Notwithstanding any provisions of this Act, where a casual employee***: - 1. ***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*** 2. ***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.’’*** **(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) of the Act***:-***“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.’’*** 1. The purpose of Section 37 of the Employment Act is to protect employees from being kept on casual terms indefinitely. As the Court observed in ***Humphrey Nyaga Thomas & 25 Others v Kenyatta University [2021] KEELRC 18 (KLR)***, that retaining an employee on casual terms beyond the statutory limit and for prolonged periods, in that case for as long as 1 to 10 years, is contrary to Section 9 of the Act and offends the constitutional guarantee of fair labour practices. 2. Turning to the facts of the present case, the Respondent does not dispute that it engaged the Appellant as a cook in 2016 and that she remained in its employment until 2021. Can it then be said that the Appellant remained a casual employee for 6 years? I do not think so. 3. By virtue of Section 37 of the Act, the Appellant's engagement had, by operation of law, converted into regular employment, with all the rights and protections attendant to such employment. 4. The court is guided by numerous cases such as the case of ***Silas Mutwiri vs Haggai Multi Cargo Handling Services Limited [2013] eKLR*** where it was held as follows: *“The*[*Employment Act*](https://kenyalaw.org/akn/ke/act/2007/11)*, 2007 has now created a fundamental shift from the previous*[*Employment Act*](https://kenyalaw.org/akn/ke/act/2007/11)*, 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 coverts such casual employment into term contract status.”* 1. Similarly in the case of ***Humphrey Nyaga Thomas & 25 others v Kenyatta University [2021] KEELRC 18 (KLR)*** the court held as follows; *“What is clear to this court, the respondent picked and separated the petitioners from other employees and denied them the benefits of the law under the guise that these are casual employees, that they were on 3 months contract employees save there are no work records to maintain and support such assertions. Such has denied the petitioners their rights at work, such is in violation of the right to dignity, security at work, in violation of the right to property and fundamentally a violation to the right to fair labour practices and cumulatively this is an act of discrimination against the claimants as the respondent has other employees not similarly treated and under better terms and conditions of employment.* The Court of Appeal in defining discrimination in employment in the case *of* ***Barclays Bank of Kenya LTD & Another v Gladys Muthoni & 20 Others [2018] eKLR*** held as that; *“… Discrimination means affording different treatment to different persons attributable wholly or mainly to their descriptions… whereby persons of one such description are subjected to … restrictions to which persons of another description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description….* *Discrimination also means unfair treatment or denial of normal privileges to persons because of their race, age; sex … a failure to treat all persons equally where no reasonable distinction can be found between those favoured and those not favoured.* *This aptly captures the practice of the respondent against the petitioners. Though serving the respondent for period of between 10 to 12 years, the respondent maintained the petitioners as casual employees contrary to the law. the petitioners have been denied privileges which would have accrued with conversion of their employment.* *The respondent was at all material times aware of its needs, the need to keep the petitioners in their service and where this was not the case, with the benefit of the law, casual employment ought to have ended each day as the need arose and renewed each other days such service was required.* *Where the continued employment of the petitioners was found untenable, the respondent opted to entice them with seasonal contracts. Such is found unlawful.”* 1. Further Court cannot overlook the guidance of the Court of Appeal in ***Chemelil Sugar Company vs. Ebrahim Ochieng Otuon & 2 Others [2015] KECA 202 (KLR),*** where it was stated that “…*employees who, on the facts of that case, were initially engaged as casual employees and worked in various capacities for periods ranging between one year and fifteen years, had their respective contracts of service converted to term contracts by operation of law under section 37 of the Employment Act…those provisions are self-explanatory. The respondents’ employment with the appellant were automatically converted into term contracts by operation of that provision…"* 1. From the evidence on record, I find that the learned trial magistrate fell into error in relying on irregular payments in the Appellant's bank statements therein to conclude that the Appellant was a casual employee. I agree with the Appellant that the irregularity in payments between March and October 2020 can be readily explained by the COVID-19 pandemic, when schools were closed and normal operations were disrupted and therefore in those circumstances, the irregular payments cannot, be taken as conclusive proof that the Appellant was a casual employee. 2. In any event, outside that period, the court has noted that the bank statements and the Respondent’s payment vouchers show regular payments each month from October 2020 to June 2021 without a break, which in my view, is inconsistent with a casual employment. 3. Consequently, it is the court’s finding that the Appellant having worked as a casual employee from 2016 to 2021 became protected under the law and the rights and benefits under the Employment Act, 2007 accrue. ***Whether the Appellant was unfairly dismissed from employment by the Respondent******and is entitled to relief.*** 1. On the basis of the finding made above that the Appellant's contracts of service were governed by ***Section 37***, it was incumbent on the Respondent to comply with ***Section 35 (1) (c)*** which provides for the manner of termination of various forms of employment in the following terms:- ***“35 (1) A contract of service not being a contract to perform specific work, without reference to time or to undertake a journey shall, if made to be performed in Kenya, be deemed to be –***... ***(c) where the contract is to pay wages or salary periodically at intervals of or exceeding one month, a contract terminable by either party at the end of the period of twenty-eight days next following the giving of notice in writing.”*** 1. The Respondent’s position is that it did not terminate the Appellant’s service and that it was the Appellant who absconded duty. On the other hand, the Appellant testified that she did not abscond work and that after going on her sick leave and coming back, she found that her position was given away. 2. It is trite that an employee who absconds duty is subject to summary dismissal upon notice and hearing pursuant to Section 41(2) of the Act. Furthermore, where an employee is alleged to have deserted duty, a report should be filed with the Labour Officer. In this regard the court is guided by the case of ***Joseph Maina Mwangi v Gathare Bar Hotel & Boarding House [2021] KEELRC 1424 (KLR)*** where it was held that it is not sufficient for an employer to cite the employee for desertion of duty. It must be demonstrated what measures were taken to address such misconduct. 3. Employment must terminate for a valid reason and upon the employee being given a hearing and notice. During cross-examination, DW1, one Mercy Njeri, admitted that the Appellant returned to work after the expiry of her 3-day sick leave. DW1 further admitted that not all employees sign the attendance register. The Court has considered that evidence. However, the Court is equally unable to overlook the fact that the Appellant's signature no longer appears in the attendance register after 14th January 2021. If indeed she continued working until June 2021, as alleged, it is difficult to understand why there is no further record of her attendance, even once. Consequently, her claim for accrued salary fails. 4. However, without any material evidence that the Respondent tried to reach the Appellant, the court finds there was unfair termination of employment. 5. In this regard, my brother Radido J in ***Philomena Kiprotich Kirui v Lessos Veterinary Suppliers Ltd [2016] eKLR*** stated the following: “*an employer who terminates the services of an employee on grounds of abscondment or desertion has to demonstrate and/or prove that the employee had no intention of resuming work.”* 1. I am also guided by the case of ***Muani v Epco Builders Limited (Employment and Labour Relations Appeal E080 of 2023) [2025] KEELRC 476 (KLR) (20 February 2025) (Judgment)*** where the court held as follows; *“How does an employer discharge its burden in proving that an employee has absconded duty? Flowing from caselaw(supra) it is firmly established that an employer alleging that an employee has absconded duty is required to show efforts made to reach out to the employee to put them on notice that termination of their employment on this ground is being considered consistent with the provisions of section 41 of the Employment Act.”* 1. The Court having found that the Appellant was unfairly terminated proceeds to assess the appropriate remedies under **Section 49 of the Employment Act**. Taking into account that the Appellant served the Respondent from 2016 until January 2021 and the manner in which the employment came to an end, the court finds that an award equivalent to 8 months' salary is fair and reasonable compensation for the unfair termination. 2. On the applicable salary, the Court has found that the Appellant did not prove the alleged monthly salary of Kshs. 27,000. The Court has therefore adopted the applicable statutory minimum monthly wage for a cook under the **Regulation of Wages (General) (Amendment) Order, 2021** for purposes of computing the awards payable which is the sum of **Kshs. 9,932.52.** 3. On the prayer for one month's salary in lieu of notice, having found that the Appellant's employment had converted into a regular term contract under Section 37 of the Employment Act, the Appellant was entitled to notice before the termination of her employment. Since no notice was issued, she is entitled to one month's salary in lieu of notice. 4. On the claim for salary arrears, the Court finds that the Appellant did not prove that she worked for the 5 months she is claiming. In her own words she was treated as a Ping-Pong until she was terminated in June of 2021. In the absence of such evidence, the Court has no basis upon which to make the award. The claim is therefore denied. 5. On the claim for unpaid leave the Respondent was mandated by Section 74 of the Employment Act to produce employment records showing that the Appellant took his leave. This court therefore finds that the Appellant was entitled to her unpaid leave of 5 years. 6. On the claim for service pay under Section 35(5) and 35(6) of the Employment Act, the Respondent did not produce any evidence to show that the Appellant was a contributor to the National Social Security Fund or any other statutory scheme. The Court therefore finds that the Appellant is entitled to service pay. 7. On the claim for payment for work done during public holidays, the same not specifically pleaded and proved and is therefore declined. 8. **In the upshot the appeal succeeds. The judgment of the trial court is hereby set aside and substituted with judgment for the Appellant as follows:—** 9. **Eight (8) months' salary as compensation for unfair termination………….Kshs. 9,932.52 × 8 = Kshs. 79,460.16** **ii. One (1) month's salary in lieu of notice……….Kshs. 9,932.52** **iii. Salary arrears ..................................................... NIL** **iv. Accrued leave ..................................................... NIL** **v. Service pay ..................** **Kshs. 4,966.26 × 5 = Kshs. 24,831.30** **vi. Public holidays ..................................................... NIL** **Total: Kshs. 114,223.98** 1. **The Respondent shall within 30 days of this judgment unconditionally issue and supply the Appellant with a certificate of service.** 2. **The appellant shall further have costs in the lower court and of this appeal.** 3. **It is so ordered.** **Dated at Nairobi this 12th day of August 2026** **Delivered virtually this 12th day of August 2026** **Abuodha Nelson Jorum** **Presiding Judge-Appeals Division**