https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/139

Mwamburi v Taita Taveta University (Employment and Labour Relations Cause E005 of 2024) [2026] KEMC 139 (KLR) (23 June 2026) (Judgment) Neutral citation: [2026] KEMC 139 (KLR) Republic of Kenya In the Voi Law Courts Employment and Labour Relations Cause E005 of 2024 TN Sinkiyian, PM June 23, 2026 Between Charles Mwamburi Claimant and Taita Taveta University Respondent Judgment The background of the case 1.This matter was heard in September 2025 and due to delay by the respondent to file submissions the judgment that was to be delivered in December 2025, was arrested under certificate of urgency. By the time the claimant filed further submissions, the trial magistrate had been transferred from Voi Law Courts. Parties subsequently requested for the matter to be placed before the trial magistrate in Mariakani and appeared on 30/4/2026 when the date for judgment was reserved. 2.Claimant Charles Mwamburi was heard on 1/9/2025 and he closed his case. Similarly on 1/9/2025 Respondent called one witness Chrisantose Odhiambo Ogony, the incharge Human resources director at the Respondent. 3.Respondent's cross examination of claimant dwelt on letter dmfi 1 18/5/2021 Payment 400/= per day, no other benefits and after 2 ½ months be required to leave. Claimant confirmed he received that letter and signed and worked after 2 ½ months he wrote to request renewal kama kibarua. He was paid. Letter of 7/5/2015 referred Claimant said he had a 1 year contract for Kshs. 13,018/= He accepted the offer. He said he was claiming benefits for 8 years he worked as a casual. He was only paid 48,426/= which he was told was gratuity for 1 year. He said he was given 1 year contract despite the retirement age of 60 years which he was aware of. University did a send off party for him at retirement and he enjoyed the party. He is a member of KUDHEIHA , grade 3. He is aware that the university has agreement with KUDHEIHA for grades 1 to 4. Claimant said the 2 ½ months contracts for 2012 were not acknowledged in the certificate of service. 5 months contract was given to him by the university after reaching retirement. That was a renewable contract. He was however told suddenly to leave, without any notice to prepare him for retirement. Claimant closed his case 1/9/2025. 4.Respondent's case: 1/9/2025 the witness for the respondent Chrisantose Odhiambo Ogony, serving as director Administration, planning and development and incharge HR, essentially adopted the Response to claim dated 11th March 2025, in which all the allegations raised in the statement of claim have been denied except that the claimant was employed by the respondent and the court’s jurisdiction is challenged on basis of premature filing of the claim: non exhaustion of alternatives. 5.The witness statement by Chrisantose Odhiambo Ogony, certified human resource practitioner, serving as director Administration, planning and development and also the incharge human resource for the respondent is a reiteration of the Response to Claim. The respondent contends that the nature of employment was as a casual Walker casual worker two and a half months contract intervals which were extended on voluntary basis. The pay agreed upon Kshs. 400 a day was paid. He was later issued with a one year contract with clear contractual terms of engagement. The letter of appointment for 1 year is for 18th of May 2015. The claimant continued to serve the one of contract which ended after the placement attained 60 years of age mandatory retirement age for government uh agency at the end of the contract the payment was paid service gratuity Kshs. 64,150/= then no other claims. 6.The claimant had attained the mandatory retirement age and the respondent had to comply with a circular for February 2014 which required government agencies not to retain staff who had attained the mandatory age of 60 years. The respondent therefore retired the claimant as he had served 5 months beyond the retirement age. The respondent is at liberty to counter claim for the 5 months salary which was paid to claimant over and above the 60 years mandatory retirement each the Clement was issued with a certificate of service dated 23rd August 2026. (typo) 7.The contractual terms entered into were voluntary and the claimant has thus come to court with unclean hands to attempt to cajole the court to misdirect itself on the matters that were not part of the parties contracts. The claimant is not acting in good faith as he has filed the claim to attempt to deliberately mislead the court. The claim should be dismissed with costs to the respondent. 8.Parties had contractual terms which were voluntarily entered into by the parties and they claimant has benefited fully earning his salary for the years without any complaint whatsoever. He was initially a casual worker two and a half months contracts being paying Kshs. 400 per day. ?He cannot turnaround to claim he was employed on a pensionable basis; he is misleading the court. There's no basis to infer that claimant was employed on permanent and pensionable terms as he was employed on contract; 2 ½ months contract with crystal clear terms. Being a casual worker the very nature of the casual work he was engaged in makes the permanent pensionable terms and conditions inapplicable. 9.The claimant has failed to exhaust available remedies as he came to court while there was a mediation pending before the labor office. The claim is prematurely before the court. 10.The claim is misconceived incompetent , fatally defective and then abuse of quote process the same should be dismissed with costs to their respondent against the claimant. 11.In his testimony HR director Chrisantos cited on contract 11th May 2011 as an example of one of the 2 ½ months contract is for 18/5/2011 which specifically provide that the claimant would be engaged as a skilled casual worker attached at the procurement department for 2 ½ months …..with payment t of Kshs. 400/- a day, and that there was no other benefit attached to the engagement, that at the end of the 2 ½ months the claimant will be required to leave. The claimant voluntarily accepted those terms and he benefitted. He is thus coming to court with unclean hands by purporting to claim under permanent and pensionable terms yet he was employed as a casual worker and paid fully under those contracts. The 1 year contract he was later issued with automatically terminated upon the claimant attaining the mandatory retirement age of 60 years. 12.Claimant seeks vide the memorandum of claim dated 20/9/2024 filed 24/9/2024: Kshs. 1,733,250.00/= being the claimant's terminal dues and contractual dues as set out at paragraph 15 of the claim: C. RELIEFS 15. The Claimant claims for terminal benefits made up as hereunder; a) Gratuity [Ksh 14,750x31% xl2 x 8 yrs less paid Ksh 48,426] thus Ksh 390,534.00/= b) House allowance [Ksh 10,882 xl2x3years]) Ksh 391,534.00/= c) Salary in lieu of notice (3 months) Kshs. 44,250.00/= d) Unpaid leave pay (for 3 years) Kshs. 44,250.00/= e) Unpaid working off days (Ksh 492 x 8x12x3x2=283,392.00; f. unpaid holidays Kshs. 492x33days x2=32,472.00; g) travelling allowances Kshs. 3,100.00/=x3 years=9,300/=, h. Bus fare allowancesKshs. 8,000/= x 12x3years=Kshs. 288,000/= i. Hardship allowance Kshs. 4,435/=x 12x3years=159,000/= j. Duty allowances Kshs. 2500x12x3 years=Kshs. 90,000/= thus totaling Kshs. 1,733, 250.00/=. The claimant claims relief urging that he worked continuously from 2008 October up to May 2016 serving diligently as a store keeper and by virtue of his continued service working regularly and continuously the entire period the respondent refused to declare him a permanent employee. He was never given days off; no annual leave and he was required to work even during public holidays without rest and without being for the rest days he was denied. 13.By the time he was terminated he was earning Kshs. 13,018/= commencing. He indicates Kshs. 14,750/= where salary is shown in paragraph 9 of claim. He claims he was retired 16/5/2016 due to age and promised his terminal dues which the respondent neglected to pay. 14.The claimant in responding to the Response to claim filed a reply dated 8th August 2025. 15.Analysis and findings: The facts in this case are not in dispute. 16.The court has set out in extenso the respondent’s Submissions dated 7/11/2025 Respondent as the same are an echo of the case put forward in answer to the Claim and the witness statement The statement adopted by the respondent's witness Chrisantose Odhiambo Ogony dated 11/3/2025 is essentially a reiteration of the response to the claim. Submissions filed by H. Ouko & Associates Advocates. The respondent submits: Parties had agreements contracting voluntarily between them, 2 ½ months contracts broken at intervals as agreed, paid 400/= daily. Later a 1year contract fixed term Kshs. 13,018 per month with 31% service gratuity. The claimant worked and was paid as agreed. Terminal dues of Kshs. 64,150.53/= paid at end of contract. No renewal or extension could be given as claimant turned 60yrs January 2016. His request for extension was considered and declined with reasons. Circular of 2014 of 14th Feb 2014 precluded employees who had reached 60yrs to remain employed. That claimant applied for renewal on 22/4/2016 and on 16/5/2016 he was Informed of the decision not to extend, and Instructions for terminal dues given by the deputy principal in charge administration Finance & planning informed claimant of the decision not to extend and instructed finance officer to pay the claimant: Gratuity 31% ×12×13,018= 48,426.96; Leave traveling allowance…3,100/=; Passage & baggage allowance Kshs. 3,325/= 15 days leave earned but not utilized 15days × 13,018/21= 9,298.57/=. He was paid and issued with a certificate of service dated 23/8/2016. 5 million in the statement of claim not particularized and has no legal basis for the claim. The claim should be dismissed. Respondent has cited 2 cases for the submission that courts should respect parties to employment contract autonomy not to interfere or attempt to rewrite contracts entered into voluntarily. Unless there is evidence of duress coercion other grounds that render the contract void or voidable.Musimbi investments ltd vs Nokia Corporation (2019) eKLR and Mugo Vs Directline Assurance Co. Ltd & Another civil appeal E875 of 2023) (No details if reported decision). 17.The court has considered the evidence tendered by both sides and the submissions filed by claimant dated 15/9/2025 and further submissions dated 19/1/2025 (error should read 2026). 18.The Issues for determining set out in B of respondents submissions a. Whether the claimant was employed by respondent? b.Whether claimant was is entitled to compensation?; c. Whether claimant was is entitled to terminal benefits? Have been considered. 19.The court finds the issues framed by the respondent while basically quoting the Issue per the Claim, miss the point. The fact of employment is not in issue. Question for determination is implication of the 2 ½ months contracts whether claimant having served under said contracts since 2011 in same capacity store clerk, constitutes continued service which together with the subsequent 1 year contract 7 months before retirement by law entitles the claimant at exit to be paid terminal benefits as a permanent and pensionable employee. Put differently, does the period of Service from 2008 count in assessing terminal benefits? Rather than just the 1 year period? May 11 2015 to May 2016? What benefits should have accrued to claimants for 2008 to 2015 service? Certificate of Service: is claimant entitled to a certificate acknowledging the period he served? 2008 to Aug 2016 as opposed to May 2015 to Aug 2016 as purported? 20.Reliefs sought: Kshs. 1,733,250.00/= being the claimant's terminal dues and contractual dues as set out at paragraph 15 of the claim: C. RELIEFS 15. The Claimant claims for terminal benefits made up as hereunder; a) Gratuity [Ksh 14,750x31% xl2 x 8 yrs less paid Ksh 48,426] thus Ksh 390,534.00/= b) House allowance [Ksh 10,882 xl2x3years]) Ksh 391,534.00/= c) Salary in lieu of notice (3 months) Kshs. 44,250.00/= d) Unpaid leave pay (for 3 years) Kshs. 44,250.00/= e) Unpaid working off days (Ksh 492 x 8x12x3x2=283,392.00; f. unpaid holidays Kshs. 492x33days x2=32,472.00; g) travelling allowances Kshs. 3,100.00/=x3 years=9,300/=, h. Bus fare allowancesKshs. 8,000/= x 12x3years=Kshs. 288,000/= i. Hardship allowance Kshs. 4,435/=x 12x3years=159,000/= j. Duty allowances Kshs. 2500x12x3 years=Kshs. 90,000/= thus totaling Kshs. 1,733, 250.00/= 21.The respondent does not deny the various 2 ½ months contracts that claimant has served under. In fact the respondent relied on the May 2011 contract as exemplifying the parties agreed terms, and justifies that under those contracts it was specified that other than Ksha. 400/= a day for the duration of work, claimant was not entitled to any other benefits. 22.Part of the documents produced by the respondent are letters showing the request for extension of 2 ½ months contract over several years. The respondent relies on intervals on paper, that the 2 ½ months constituted broken service. The respondent has however not shown evidence that claimant practically, any period since the claimant was employed that he was actually not serving at the University in same capacity. The respondent produced letters from the claimant seeking employment renewal and the respondent's acknowledgment and approval. Claimant's letters for 2010: February, April and December; for 2011 May 12th. These letters were received and responded to vide Respondent's letters 22/2/2010, 30/4/2010, 1/9/2010, 2011: 19/1/2011, 18/5/2011. The respondent has not in any of its letters disputed the claimant's statement in each of his request for renewal letters that “i have been working in Procurement Food Store as a storekeeper”. The said letters from the respondents were produced as claimants exhibits 5. 23.The claimant produced a recommendation letter from the department head: Recommendation letter dated 1st July 2016 by K.S. Ndiwa Head of Procurement department lauds Charles Mwangu Mwamburi as a cooperative team player, hardworking and one who works without supervision, and states that Charles joined Tait Taveta University College in 2008 and worked continuously upto 10/8/2016. He served the institution for 8 years as a store keeper in both food and maintenance warehouse. He has vast experience in stores operations, stock management and inventory control, and he had a clean performance record. The author then recommends Charles to any potential employer describing him as a one of proven capability and high standard of integrity. 24.The terminal benefits he was paid were based on the 1 year contract for May 2015 only instead of the 8 years he had actually been in service. 25.The certificate of service he was issued with does not acknowledge claimant has served the institution since 2008. The claimants claim that he was treated unfairly on retirement as he had no prior notice to prepare him for retirement. He claimed that he was suddenly asked to leave on retirement, no preparation given for retirement. Granting him a 1 year contract after 7 years of serving on 2 ½ months contract reasonably gave the claimant a legitimate expectation that depending on his performance he could have the 1 year contract renewed as stated in the contract for May 2015. 26.Ordinarily employees serving in public institutions are granted terminal leave before retirement, and offered basic training to prepare for retirement. 27.The respondent has not shown any notice given to the claimant to notify him of the looming retirement; the respondent has not shown there was any pre retirement training or seminar that claimant was taken through in preparation for retirement. 28.The respondent's tagging of the claimant as a casual worker seems to have informed the respondent’s casual treatment of the claimant, in total disregard of the long period of service he rendered as a store clerk. 29.In cross examination of claimant the respondents counsel dwelt on letter dmfi 1 18/5/2021 Payment 400/= per day, no other benefits and after 2 ½ months be required to leave. That after 2 ½ months the claimant was required to leave. The claimant however never left as the respondent continued to engage him as a store clerk until 2016 when it brought up issue of the respondent's age and declined to renew the contract. 30.The allegation by the respondent that claimant was being paid a daily wage of Kshs. 400/= is shown to be unfounded as claimant produced a copy of his Cooperative bank account statement for 2010 showing payment by cheque. The respondent did not challenge the said cheques clearly showing Salary processed against JKUAT account stated therein. 31.The claimant cannot in the circumstances of this case be termed as a casual employee considering the definition of a casual worker under section 2 of the Act check.. 32.The Claimant has in his submissions brought out the question of applicability of Section 37 of the Employment Act, 2007 applied to his employment. As he had claimed his terminal dues should be considered as for someone who worked continuously for more than 8 years in the same capacity doing nature of work that was continuous. 33.The cases that this court has found on question of service exceeding 3 months, where by operation of law such an employee’s employment converts employment into a contract of service with monthly wages: Esther Njeri Maina v Kenyatta University [2020] eKLR, where the court held that an employee performing the same tasks on a continuous basis for over three months could not be classified as a casual worker. And the case Nanyuki Water and Sewerage Company Limited v Benson Mwiti Ntiritu & 4 Others (2018), where the Court of Appeal affirmed that Section 37 of the Employment Act applies to convert casual employment into a contract of service with monthly wages. The Claimant asserted that his employment ceased to be casual upon working for five continuous years and therefore qualified for protection under the Employment Act. 34.The more recent and applicable case is that by Court of Appeal at Nairobi Kenyatta University v Thomas & 25 others (Civil Appeal E494 of 2022) [2025] KECA 1014 (KLR) (30 May 2025) (Judgment) (Kenyatta University v Thomas & 25 others [2025] KECA 1014 (KLR) Media Neutral Citation [2025] KECA 1014 (KLR). 35.In that Appeal Kenyatta University v Thomas & 25 others, the decision by the ELRC (Monica Mbaru, J.) entered judgment in favour of the respondents in the following terms:a.a declaration that the petitioners’ employment with the respondent is not casual but converted by operation of the law and protected with rights and benefits under the Employment Act, 2007; b.the respondent shall issue the petitioners with contracts of employment with terms and conditions similar to those issued to other employees and without placing them at a disadvantage for being or not being members of the trade union; this shall be done within the next 30 days; c.Further to (a) and (b) above, the respondent shall re-engage the petitioners on suitable terms and conditions and without putting them at a disadvantage for not being unionised though they are unionisable;d.A declaration that is hereby entered that the memo dated 9th July, 2018 is null and void and of no legal force;e.A declaration that the petitioners’ constitutional rights have been violated by the respondent and are hereby awarded damages each at Ksh.280,380; f.Overtime payments due and unpaid to date shall be tabulated by the respondent and paid to the petitioners within 30 days and failure to which the petitioners shall submit their tabulations for confirmation by the court; g.The dues owed above shall be paid as directed and failure to pay the same shall accrue interests at court rate from the date due and until paid in full; andh.The petition is found with good foundation and costs are hereby awarded to the petitioner.” 36.That decision is relevant to the case now before court as it involved university staff who like the claimant here, the University in question contended that it engaged the respondents as casuals, such engagement being on and off and could only be described as intermittent; then University later engaged formally the staff on a 3-months contract, depending on availability of work. Such contracts could be renewed. In that case the University asserted the staff were at time of petition working on 3-months contracts; University claimed that the relationship between them was going on well until 2018 when the University wanted to formalize the relationship “even more” by introducing the seasonal contract, which the respondents refused. The University denied that the respondents were entitled to a monthly salary of Kshs.28,039 and contended that they were entitled to be paid for days worked in a month since the amount was not fixed. 37.The decision of the ELRC was with a memorandum of appeal with 40 grounds. The Court of Appeal in Civil Appeal E494 of 2022 Judges DK Musinga, F Tuiyott, GV Odunga on 30 May 2025 only quashed declaration (b) and partially declaration (d) of the judgment of 10th December 2020: Regarding declaration (d), it shall only apply to the respondents here. As to the order in (f), the dues payable shall be limited to 3 years before the petition was filed. Parties shall bear their own costs, both here and of the court below. 38.The Court of Appeal thus upheld among other orders the ELRC finding ‘’a declaration that the petitioners’ employment with the respondent is not casual but converted by operation of the law and protected with rights and benefits under the Employment Act, 2007. 39.The finding that was made in circumstances largely similar to those facing the Claimant here. As the claimant here served 8 years by time he was denied contract extension on grounds of reaching retirement age. His claim is that his terminal; dues should be worked out not as a casual having worked 8 years as a store clerk. . 40.The claimants' case that he has served as a store clerk since 2008 until 2016 is thus proved. This court is satisfied that the claimant given having served the respondent as a store clerk since 2008 continuously is under section 37 of the Employment Act entitled to all the benefits of an employee on contract of service. The 2 ½ months contracts claimant had been serving under were meant to shield the respondent from the full responsibility towards an employee who has served more than 3 months continuously. The respondent's case is unfounded in law and thus lacks merit. 41.The claimant's case is thus proved. The claimant lodged a complaint with the union and it was referred to labour office. Claimants exhibit 6, appointment of Tsuma Gona Voi Labour Office to act as the conciliator in the dispute. The respondent refused to participate in the proceedings. The claimant produced Findings by County Labour Office, T.S. Gona Conciliator dated 16/11/2020. The conciliator recommended that the Respondent employer do pay Charles Mwamburi service gratuity from 2008 to 2016, wages underpayment for 3 years, house allowance 3 years, annual leave 3 years, overtime on public holidays if worked be paid 3 years, bus fare 3 years be compensated, hardship allowance 3 years, duty allowance for 3 years and 3 months notice. And the claimant then filed the claim in court on 22/9/2024. The matter was not prematurely lodged in court as contended by respondent. 42.The Court is not writing the 2 ½ months contracts but subjecting the respondent to the law that requires fair labour practices. It's unfair to keep an employee in service for 8 years while still tagging the employee as a casual worker to justify denial of fair treatment. By the time the claimant left in August 2016 he was serving as store clerk II- Grade 3. His contract was a renewable contract subject to satisfactory performance. 43.The respondent is the custodian of its employees records. The question raised in paragraph 7 of the Memorandum of Claim dated 20/9/2024, that claimant never had an off day, that he worked during public holidays and that he never was given annual leave, those are matters the employer respondent bought to have countered if untrue by availing relevant records. The respondent had no such record to avail given that in the respondent’s admission the claimant was not deserving of any benefits other than 400/= daily having framed the claimant as casual. With that perspective the respondent had set up for itself an unlawful basis not to accord the claimant basic conditions of service. 44.The court finds that the respondent has failed to demonstrate that the claimant took any off days, annual leave. The certificate of service does not give the full picture of the claimants experience in that it leaves out the years of service from 2008 to May 2015, yet claimant was in the respondents employment all those years. 45.This court agrees with the claimant's submissions that considering the evidence tendered in this case, that the respondent failed acted unjustly in computing the claimant's terminal dues upon its refusal to extend the contract that lapsed 2016 May. 46.The respondent has failed to demonstrate any salary increments the claimant has been paid over the course of the 8 years he served the respondent. The 1 year contract he was given in May 2015 indicates claimant would have earned up to Kshs. 16, 682/= having entered the position starting Kshs. 13,018/= May 2015. The adoption of Kshs. 14,750/= as the basis for calculating gratuity is thus fair in the circumstances. The court awards the Claimant his claims as tabulated in the Claim paragraph 15 a) Gratuity [Ksh 14,750x31% xl2 x 8 yrs less paid Ksh 48,426] thus Ksh 390,534.00/= b) House allowance [Ksh 10,882 xl2x3years]) Ksh 391,534.00/= c) Salary in lieu of notice (3 months) Kshs. 44,250.00/= d) Unpaid leave pay (for 3 years) Kshs. 44,250.00/= e) Unpaid working off days (Ksh 492 x 8x12x3x2=283,392.00; f. unpaid holidays Kshs. 492x33days x2=32,472.00; g) travelling allowances Kshs. 3,100.00/=x3 years=9,300/=, h. Bus fare allowancesKshs. 8,000/= x 12x3years=Kshs. 288,000/= i. Hardship allowance Kshs. 4,435/=x 12x3years=159,000/= j. Duty allowances Kshs. 2500x12x3 years=Kshs. 90,000/= thus totaling Kshs. 1,733, 250.00/= which amount 47.The court is satisfied and finds all reliefs sought by the claimant are just to award as prayed and particularized in the computation by the claimant in paragraph 15 of the Claim totalling Kshs 1,733, 250/= The award shall be subject to statutory deductions. The prayers sought in the memorandum of claim dated 20/9/2024 are thus warranted. 48.It's just that the claimant be issued with a certificate of service that shows his full period of service with the respondent: 2008 October to August 2016. The respondent is ordered to comply. 49.The court enters judgment in favour of the claimant against the respondent as prayed in the Memorandum of Claim with interest at court rates from today until paid in full. 50.The court awards costs of suit to the claimant against the respondent. 51.Appeal as prescribed to ELRC Mombasa. JUDGMENT DATED, SIGNED & DELIVERED THIS 23RD DAY OFJUNE 2026T. N. SINKIYIAN, PRINCIPAL MAGISTRATEIn Presence Of:Claimant:...present (joining virtual court from Voi Law Court).In personThe Respondent:..Mr. Hannington Ouko .Present.H. Ouko & Associates Advocates.Court Assistant: Hussein Yussuf