Court Deals Kensalt Major Blow, Rules Two-Year ‘Casual’ Worker Was Legally Permanent

For nearly two years, Joshua Mutisya Mutua reported to work as a general construction worker six days every week.

He mixed mortar, laid masonry, and helped raise a godown for salt manufacturer Kensalt Limited.

Then, on November 16, 2023, the workday ended differently.

A supervisor, Kalyan Hiran, told him his services were no longer needed, handed him KSh15,632 without explanation, and sent him away.

This week, the Employment and Labour Relations Court ruled that the dismissal may have coincided with the project’s end, but it still broke the law.

In a judgement carrying important lessons for employers relying on long-term casual labour, Justice Ocharo Kebira dismissed Kensalt’s appeal and upheld an earlier award of KSh105,408 to the former construction worker.

Two Years of “Casual” Work Scrutinized

The dispute centred on a familiar question in Kenya’s labour market. At what point does a casual employee stop being casual?

Mutua maintained that he had worked continuously from September 2021 until November 2023.

According to court records, he earned KSh732 daily, worked six days every week, and received weekly cash payments while helping construct a Kensalt warehouse.

He argued that such uninterrupted service automatically converted his engagement into a contract of service under Section 37 of the Employment Act, entitling him to notice before termination and other statutory protections.

Kensalt painted a different picture. The company insisted Mutua remained a day-to-day casual labourer whose engagement never exceeded twenty-four hours at any one time.

Consequently, it argued, there was no legal termination requiring notice or compensation.

Yet the company’s own evidence became one of its greatest obstacles.

Its Human Resources officer produced attendance registers covering only three isolated weeks across more than two years.

Under cross-examination, he conceded they were merely “samples” rather than complete employment records.

He also could not confirm whether National Social Security Fund deductions reflected in Mutua’s documents had actually been remitted.

The supervisor who allegedly informed Mutua that his employment had ended never testified.

Inconsistent Paperwork

Justice Kebira agreed with the trial magistrate that the documentary evidence contradicted Kensalt’s narrative.

“The Respondent’s NSSF statement records monthly remittances… consistent with continuous service,” the judge observed while faulting the employer for producing only selected attendance registers instead of complete employment records.

The court further noted an internal contradiction in Kensalt’s pleadings.

While repeatedly describing Mutua as a casual employee, the company also referred to him elsewhere as a piece-rate worker.

The judge emphasised that Kenyan law treats the two arrangements differently, concluding that the inconsistency weakened the company’s defence rather than strengthening it.

That reasoning reflects an increasingly settled judicial approach.

Kenyan courts have consistently interpreted Section 37 to mean employers cannot indefinitely label workers as casual employees where the evidence demonstrates continuous service extending beyond the statutory threshold.

Unfair Dismissal

The judgement nevertheless offered Kensalt one significant legal victory.

Mutua had argued he was declared redundant. Both the magistrate’s court and the appellate court rejected that claim.

Justice Kebira found no evidence of a redundancy process.

There was no notification to the Labour Officer, no selection criteria, and no statutory redundancy notices.

Instead, the evidence showed Mutua’s work naturally ended because the warehouse construction project had reached completion.

That constituted a valid reason for ending the employment relationship.

Even so, the court stressed that having a lawful reason does not excuse an employer from following lawful procedure.

Once Mutua’s employment had converted under Section 37, Kensalt became legally obliged to issue notice or pay salary in lieu before terminating his services.

The unexplained payment of KSh15,632 failed to satisfy that obligation.

“The trial court’s finding that the termination was, to that limited and procedural extent, unfair was correct and is upheld,” Justice Kebira ruled.

That distinction may appear technical, yet employment lawyers describe it as one of the Employment Act’s defining principles.

A dismissal can be justified by a valid operational reason while still attracting compensation if the employer ignores mandatory procedural safeguards.

Kenyan appellate courts have repeatedly underscored that procedural fairness remains an independent statutory requirement.

Compensation Upheld

Having upheld the finding of procedural unfairness, the judge declined to disturb any of the lower court’s awards.

Mutua will retain KSh17,568 as one month’s salary in lieu of notice, KSh52,704 in unpaid house allowance, and KSh35,136 as compensation equivalent to two months’ salary.

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The court also affirmed that he was not entitled to severance pay because his employment had not ended through redundancy.

In dismissing the appeal, Justice Kebira concluded there was “no basis” to interfere with the magistrate’s decision.

Kensalt was further ordered to bear the costs of the appeal.

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