[2025] KEELRC 52 (KLR)

Okello & 4 others v University of Nairobi (Civil Appeal E185 of 2022) [2025] KEELRC 52 (KLR) (23 January 2025) (Judgment)

Neutral citation: [2025] KEELRC 52 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Civil Appeal E185 of 2022

L Ndolo, J

January 23, 2025

Between

Joshua Otieno Okello

1st Appellant

Caroline Atieno

2nd Appellant

Kenneth Akoko

3rd Appellant

Lydiah Simiyu

4th Appellant

Anthony Mbuvi

5th Appellant

and

University of Nairobi

Respondent

(Appeal from the judgment of Hon. M.W Murage, SRM delivered on 28th September 2022 in Milimani CMELRC No 553 of 2019)

Judgment

1. This appeal arises from the judgment delivered on 28th September by M.W Murage, SRM in Milimani CMELRC No 553 of 2019.

2. In their Memorandum of Appeal dated 27th October 2022, the Appellants raise the following grounds of appeal:a.That the learned trial Magistrate erred in law and fact by holding that the Appellants were casuals despite overwhelming evidence that they had worked for periods ranging between 1 year and 12 years and by dint of the provisions of Section 37 of the Employment Act, their employment terms had automatically converted;b.That the learned trial Magistrate erred in law and fact by failing to properly construe the provisions of Section 37 of the Employment Act;c.That the learned trial Magistrate erred in law and fact by failing to award the Appellants terminal dues such as; salary for December 2018, leave pay, house allowance, service gratuity plus 12 months’ compensation as prayed for in paragraph 13 of the Statement of Claim dated 10th April 2019;d.That the trial court erred in law and fact by not making a finding that the Respondent did not have a valid reason to terminate the Appellants’ employment contracts, contrary to the provisions of Section 45 of the Employment Act;e.That the trial Magistrate erred in law and fact by failing to make a finding that the termination of the Appellants’ employment was unfair, contrary to the express provisions of Section 41 of the Employment Act;f.That the trial Magistrate erred in law and fact by failing to appreciate and evaluate the facts, evidence and the law applicable in the Appellants’ case.

3. This being a first appeal, I am required to reconsider and re-evaluate the evidence adduced before the trial court and draw my own conclusions taking into account that I have not had the opportunity to hear the witnesses.

4. In this regard, I am guided by the Court of Appeal decision in Selle v Associated Motor Boat Company Ltd [1968] E.A 123 where the duty of a first appellate court was established as follows:“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. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities……..or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”

5. All the six (6) grounds of appeal set out in the Memorandum of Appeal revolve around the finding by the trial court, on the nature of the Appellants’ employment with the Respondent.

6. In the impugned judgment, the trial court drew the conclusion that the Appellants were casual employees. This appeal therefore turns on the question whether the Appellants were indeed casual employees. Section 2 of the Employment Act defines a casual employee as:“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.”

7. The Appellants fault the trial court for failing to properly apply the provisions of Section 37 (1), (2) and (3) of the Employment Act, which states as follows:37. (1)Notwithstanding any provisions in 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; orb.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.(2)In calculating wages and the continuous working days under subsection (1), a casual employee shall be deemed to be entitled to one paid rest day after a continuous six days working period and such rest day or any public holiday which falls during the period under consideration shall be counted as part of continuous working days.(3)An employee whose contract of service has been converted in accordance with subsection (1), and who works continuously for two months or more from the date of employment as a casual employee shall be entitled to such terms and conditions of service as he would have been entitled to under this Act had he not initially been employed as a casual employee.

8. In her judgment dated 28th September 2021, the learned trial Magistrate states as follows:“Both parties were in agreement that the Claimants have worked for the Respondent for a period of 12 years. However they were working as casual labourers on need basis as defined by section 2 of the employment Act. They cannot therefore claim unlawful termination…”

9. In support of their case before the trial court, the Appellants filed internal communication within the Respondent, staff identity cards as well as wages payment schedules. The internal communication reveals that the Appellants were engaged as washroom cleaners in the students’ halls of residence. By their nature, these jobs were required to be done on a continuous basis and cannot therefore be said to have been on need basis.

10. Additionally, the wages payment schedules indicate that the Appellants worked for continuous periods in excess of the statutory period for casual workers. Moreover, the Appellants were paid on monthly basis. There was therefore enough evidence adduced before the trial court to aid a conclusion that the Appellants were term employees within the meaning of Section 37 of the Employment Act. Consequently, I agree with the Appellants that the conclusion by the learned trial Magistrate that the Appellants were casual employees was an error of law and fact.

11. With the foregoing finding, it follows that the termination of the Appellants’ employment ought to have been subjected to the requirement for a valid reason as set out in Section 43 of the Employment Act as well as the fairness dictates of Section 41 of the Act.

12. None of these standards were met and the inescapable conclusion is that the termination was substantively and procedurally unfair. Guided by the Supreme Court decision in Kenfreight (E.A) Limited v Benson K. Nguti [2019] eKLR, I find that the Appellants ought to have been awarded compensation for unlawful and unfair termination of employment. In addition, the Appellants ought to have been awarded notice pay.

13. Regarding the claim for house allowance, the only thing to say is that the Appellants were paid a daily rate, that would ordinarily be inclusive of a housing element. The claims for leave pay, salary for December 2018, service gratuity, leave travelling allowance and commuter allowance were not proved.

14. On the whole, this appeal succeeds and the order of dismissal of the Appellants’ claim is set aside and is replaced with an award in favour of the Appellants. In tabulating the respective awards, I have employed the figure of Kshs. 622 as the applicable daily rate, as pleaded by the Respondent. I have also taken into account the respective periods of service, as pleaded by the Appellants:1. 1st Appellant: Joshua Otieno Okello (12 years of service)a.12 months’ salary in compensation…………………..Kshs. 179,136b.1 month’s salary in lieu of notice………………………………….14,928Total…………………………………………………………………………194,0642. 2nd Appellant: Caroline Atieno (5 years of service)a.5 months’ salary in compensation…………………..Kshs. 74,640b.1 month’s salary in lieu of notice……………………………….14,928Total…………………………………………………………………………89,5683. 3rd Appellant: Kenneth Akoko (4 years of service)a.4 months’ salary in compensation…………………..Kshs. 59,712b.1 month’s salary in lieu of notice……………………………….14,928Total………………………………………………………………………..74,6404. 4th Appellant: Lydiah Simiyu (1 year of service)a.1 month’s salary in compensation…………………..Kshs. 14,928b.1 month’s salary in lieu of notice……………………………….14,928Total……………………………………………………………………….29,8565. 5th Appellant: Anthony Mbuvi (1 year of service)a.1 months’ salary in compensation……………………..Kshs. 14,928b.1 month’s salary in lieu of notice………………………………..14,928Total…………………………………………………………………………29,856

15. The Respondent will pay the costs of this appeal and of the proceedings before the trial court.

DELIVERED VIRTUALLY AT NAIROBI THIS 23RDDAY OF JANUARY 2025LINNET NDOLOJUDGEAppearance:Mr. Nyabena for the AppellantsMr. Mereka for the Respondent