Since I started my law school journey a number of years ago, I have interacted with a number of Kenyans, mostly acquaintances and what perplexed me the most is the term ‘casual’ being applied to persons doing chores such as household, construction and other work which in its very nature requires continuous long-term engagements. These personal interactions have forced the penning down of this short treatise to enlighten the public on what the term “casual” in the context of employment means. The common understanding of the term does not always correspond with its legal meaning, and the distinction has significant consequences for both employers and employees.
Therefore, I would start by defining what constitutes casual employment and its legal parameters, then I would enlighten you on when a casual employment stops being casual, converts to a term contract and the practical implications of the same, thereafter I would show you employer practices which amount to abuse of casual arrangements, I would then differentiate between a genuine casual and an abused casual arrangement, then offer a way forward for both parties involved before giving the judicial perspective on the bigger problem in all this.
1. What Constitutes Casual Employment?
According to the Black’s Law Dictionary, 9th Edition, casual employment is defined as work that is occasional, irregular and for a short period. On the other hand, the Employment act Act 2007 does not expressly define “casual employment” but defines a “casual employee” as a person whose terms of engagement provide for payment at the end of each day and who is not engaged for a longer period than twenty-four hours at a time. What stands out from both definitions is the emphasis on the temporary and short-term nature of the engagement. Therefore, for purposes of this discussion, I would define casual employment as an employment arrangement intended to subsist for a short and limited period, with the employee ordinarily being engaged and paid on a daily basis.
The question then becomes: What constitutes a short-term and temporary engagement? This is where the Employment Act, 2007 provides further guidance. There are several statutory indicators of the temporal limits of casual employment.
- Imagine an employee who has worked faithfully for several years.
First, Section 2 of the Employment Act contemplates a casual engagement of not more than twenty-four hours at a time, coupled with payment at the end of each day.- Second, Section 37 of the Employment Act provides for conversion of causal employment. It recognizes circumstances in which an employee engaged on a casual basis acquires the status of an employee employed under a contract of service where the employee works continuously for a period of not less than one month. Therefore any continuous period of less than one month is still well within the parameters of a casual employment.
- Third, and perhaps more importantly, section 37 applies where the employee performs work which cannot reasonably be expected to be completed within a period of three months or more.
It therefore follows that the mere fact that an employee is paid daily does not, by itself, make the employment relationship permanently casual. The law imposes limits on how long and in what circumstances an employer may legitimately maintain a casual employment arrangement. In the case of Apopo v Chic Fashions Limited [2025] KEELRC 512 (KLR) the Appellant (Apopo) was an employee of the Respondent (Chic Fashions Limited) under daily paid contracts. The Appellant alleged working for the Respondent for 18 years and hence sought entitlements granted to employees with a contract of service under the Employment Act. The court in upholding this argument held that an employee engaged under daily-paid contracts for approximately eighteen years could not remain a casual employee indefinitely. The Court found that the relationship had converted under section 37 of the Employment Act and observed that the repeated use of daily-paid contracts appeared to shield the employer from liability.
It is against this background that the next part examines when a casual employment arrangement ceases to be casual, the circumstances in which it converts into a term contract, and the practical implications of such conversion.
2. When Casual Employment Ceases To Be Casual: Conversion To A Term Contract And Its Practical Implications
“Tomorrow don’t come to work sababu kibarua kimeisha.” These words may ring a bell to many readers, whether as the boss delivering the message, a bystander witnessing it, or, worse still, the person on the receiving end. The boss, more often than not, may genuinely believe that because the employee was initially engaged as a casual worker one or more months ago, the employee remains a casual worker indefinitely. The law, however, does not necessarily agree with such an arrangement . Section 37 of the Employment Act, 2007 provides for circumstances in which an employment arrangement initially entered into on a casual basis cease to retain that character and is deemed to convert into a contract of service where wages are payable monthly. The conversion may arise in the following circumstances:
- The casual employee 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
- The casual employee 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. This demonstrates that the nature of the work itself can influence how the employment relationship is legally characterized. In other words, an employer cannot necessarily make an engagement “casual” merely by giving it that label where the nature of the work points to a longer-term employment relationship. For example, an employer may engage a mason or construction worker and pay them at the end of each day, describing them as a “casual.” However, if the worker is engaged to construct a building which, by its nature, cannot reasonably be expected to be completed within three months, the nature and expected duration of the work may bring the engagement within section 37(1)(b) of the Employment Act. The fact that the worker is paid daily does not, by itself, make the engagement indefinitely casual.
N/B: Any rest day or public holiday forms part of the continuous working days referred to above.
2. 1 Practical implications of the above conversion
Once either of the above circumstances occurs, the engagement ceases to be casual employment and is deemed to be a contract of service where wages are paid periodically at intervals of one month or more. Consequently, the employee acquires the statutory protections applicable to employees with a contract of service, including entitlement to at least twenty-eight (28) days’ notice of termination, or payment in lieu thereof.
Additionally, once the engagement has been converted as aforesaid, and the employee has continuously worked for the employer for two (2) months or more from the date of commencement of the casual engagement, the employee becomes entitled to the applicable terms and conditions of service provided under the Employment Act. These include, but are not limited to, annual leave, sick leave, maternity or paternity leave, housing or a housing allowance, lawful and procedurally fair termination of employment, and a certificate of service upon termination, together with such other statutory benefits and protections as may be applicable.
3 Employer Practices Which Amount To Abuse Of Casual Arrangements
The following are common practices which employers have adopted but in substance may amount to an abuse of casual employment arrangements:
3. 1 Practical implications of the above conversion
Perhaps the clearest form of abuse is where an employer repeatedly engages the same individual on daily terms for months or years while the employee performs work that is continuous and essential to the employer’s business.
An employee who reports to the same workplace every working day, performs the same duties, is supervised by the same employer and is expected to continue working as long as there is work available may, in substance, have a continuing employment relationship notwithstanding the description placed upon that relationship.
This was aptly demonstrated in Apopo v Chic Fashions Limited (supra). The employee had been engaged through daily-paid arrangements for approximately eighteen years. The Court found that the relationship fell within the description of casual employment at its inception but had converted by operation of section 37. Of particular significance was the Court’s concern that repeated daily-paid contracts were being used to shield the employer from liability.
The lesson here is that an employer cannot keep changing the paper description of the relationship while leaving the substance of the employment unchanged.
3. 2 Giving a casual worker repeated “one-day” engagements for permanent work
There is a difference between hiring a person for an isolated day’s work and hiring a person every working day while describing each day as a separate contract. For example, an individual may legitimately be hired to assist with unloading a particular consignment, clearing a specific portion of land, painting a particular structure or undertaking another isolated task that can genuinely be completed within the short period of the engagement. The position becomes different where the same worker is repeatedly engaged to perform an ongoing role which forms part of the employer’s ordinary operations. In Kenyatta University v Maina [2022] KECA 1201 (KLR) the Court of Appeal emphasized that an employer cannot defeat statutory employment rights and entitlements merely by maintaining a formal description which does not correspond with the substance of the relationship. The dispute concerned a university worker who had been continuously engaged over a long period while the employer attempted to characterize the engagement as temporary or seasonal. The Court upheld the trial court’s finding that the employment relationship attracted statutory protection under section 37 of the Employment Act.
3. 3 Creating artificial breaks in service
Another practice is terminating a worker for a few days or periodically sending the worker home, before bringing the same person back to perform substantially the same work. The purpose may be to create the appearance that the worker has never been continuously employed. In Kenyatta University v Thomas & 25 others [2025] KECA 1014 (KLR) the court of Appeal held that: “As to whether breaks in the respondents’ employment would change the outcome, we think not. Short breaks between the engagements would not change the fact that the University engaged the respondents on casual basis for considerable long periods of time, and any short breaks in between would not change the true character of the arrangement. To hold otherwise would encourage crafty employers to simply impose artificial breaks in this type of arrangement so as to go round the rigours and reality of section 37 of the Act.” This means that an employer cannot necessarily defeat the operation of section 37 by creating short or artificial breaks between otherwise continuous engagements. The Court will look at the substance and overall continuity of the employment relationship rather than merely the existence of brief interruptions in service.
3. 4 Using the word “casual” to avoid paying statutory benefits
Another form of abuse occurs where the employer accepts that the worker has been working continuously but insists that the worker is not entitled to leave, housing-related benefits, notice or protection against unfair termination simply because the worker was initially engaged as a casual employee.
Section 37 was enacted precisely to prevent the casual label from defeating the statutory rights arising from a continuing employment relationship. In Omukanga v Agricultural Development Corporation [2025] KEELRC 1512 (KLR), the Court declared that the claimant’s casual employment had converted to a contract of service and awarded notice pay, leave pay and house allowance, among other reliefs.
It is therefore unsafe for an employer to reason that: “Because I hired you as a casual, you have no leave, no house allowance and no protection from unfair termination.” The law does not operate on the basis of labels alone but goes deep into the substance.
3. 5 Terminating a converted employee by simply saying, “kibarua kimeisha”
This is perhaps the most common scenario in practice. An employee reports to work every day for several months or years. One morning, the employer announces that there is no more work and the employee should not return.
The employer may honestly believe that nothing more is required because the worker was “only a casual.” Once the relationship has converted under section 37, however, the employer must treat the resulting contract of service in accordance with the applicable statutory framework. Section 37(1) expressly provides that the converted contract is one where wages are payable monthly and section 35(1)(c) applies. In practical terms, this brings the employee within the statutory notice regime applicable to monthly-paid employment.
Further, where an employer terminates employment, sections 43 and 45 of the Employment Act, 2007 require the employer to establish a valid and fair reason for the termination and to demonstrate that the termination was effected in accordance with fair procedure. This protection is equally relevant where an employment relationship initially commenced on a casual basis but has subsequently converted into a contract of service under section 37. In Makori Orina Jackson v M/S Vee Vee Enterprises Limited [2020] KEELRC 781 (KLR), the Claimant had worked for the Respondent as a general labourer at its construction site for approximately 26 months, during which he was paid on a daily basis. The Respondent denied the existence of an employment relationship and, in the alternative, contended that the Claimant was merely a casual labourer. The Court, however, found that the Respondent’s own payment records constituted an admission of the employment relationship and observed that the employer had a duty to maintain records capable of demonstrating whether the engagement was intermittent or continuous. The Court ultimately found, on the Claimant’s uncontroverted evidence that he had worked every day for 26 months, that his employment had converted into a monthly contract under sections 35(1)(c) and 37 of the Employment Act.
Having found that the employment had converted, the Court went on to consider the manner in which the relationship was terminated. The Claimant had been verbally informed that there was no longer work for him and had not been given notice or subjected to a hearing. The Court consequently held that the termination was unfair under section 45 of the Employment Act, further noting that the Respondent had not proved the reason for termination as required under section 43.
The significance of the decision is therefore twofold: first, an employer cannot rely on the description of a worker as a “casual” where the evidence establishes that the employment has converted under section 37; and secondly, once the relationship has converted, termination must be undertaken within the substantive and procedural safeguards prescribed by the Employment Act.
4. The Difference Between A Genuine Casual And An ‘Abused’ Casual Arrangement
The distinction can therefore be reduced to a practical question: Is the work genuinely occasional and short-term, or is the employer using a daily payment arrangement to disguise a continuing employment relationship?
Consider the following examples.
- A farmer hires ten people for two days to assist in harvesting a particular crop. They are paid at the end of each day and are free to leave once the task is completed. That may properly constitute casual employment.
- A homeowner hires two people for one day to clear a plot of land and pays them at the end of that day. That may equally be a legitimate casual engagement.
- By contrast, a business hires a cleaner and requires that person to report to work every Monday to Saturday for two years, pays the person daily and then suddenly declares that the worker has “never been an employee because he was casual.” That is precisely the type of arrangement section 37 seeks to address.
- The same analysis may apply to a security guard, construction worker, machine operator, packer, shop assistant or other worker whose services are required continuously and whose work is not genuinely confined to isolated daily assignments. Recent decisions have continued to
emphasiseemphasize that the substance and continuity of the work matter.
5. The Way Forward For All Parties Involved
5.1 What Employers should do
Employers should therefore resist the temptation to use the word “casual” carelessly. Where the employer knows from the outset that a person’s services will be required continuously, the employer should consider putting the relationship on an appropriate written contract from the beginning. The contract should accurately reflect the nature and expected duration of the employment.
Where work is genuinely temporary, the parties should identify the appropriate contractual arrangement rather than automatically resorting to daily engagement.
Employers should also maintain proper employment records, including attendance records, payment records, written contracts and particulars of employment. These records may become particularly important where the nature and continuity of employment later become disputed.
This is especially relevant because section 10 of the Employment Act places obligations on employers concerning written particulars of employment and, where the employer fails to produce the relevant written contract or particulars in legal proceedings, section 10(7) may place the burden of proving or disproving an alleged term on the employer.
5.2 What employees should understand
Employees should equally understand that being paid daily does not automatically mean that they can claim every employment benefit from the first day of engagement. The employee must establish the factual and statutory basis for conversion. Courts have declined to convert casual workers to terms and conditions of service under the act where the evidence showed genuinely intermittent engagement. For example, in West Kenya Sugar Company Limited v Chilande [2024] KEELRC 2119 (KLR), the evidence showed that the employee worked irregularly on only a few days of the week. The Court therefore found that the statutory threshold for conversion had not been established. This illustrates an important balance: section 37 protects genuine employees from disguised casualization, but it does not abolish genuine casual employment.
An employee who believes that a casual arrangement has been improperly maintained should preserve evidence of the relationship. Attendance records, M-Pesa statements, bank statements, payment records, identification cards, duty rosters, correspondence, instructions from supervisors and evidence of continuous reporting to work may all help establish the true nature of the engagement.
6. The Bigger Problem: Casualization Of Permanent Work? Judicial Perspective
The real problem, therefore, is not the existence of casual employment itself. Casual employment serves a useful purpose. There are circumstances in which an employer genuinely needs a person for a short period, an isolated task or work that is intermittent by its very nature. The law does not prohibit such arrangements. The problem arises when permanent or continuing work is deliberately fragmented into daily engagements for the purpose of avoiding employment obligations.
That is the concern which repeatedly emerges from the Kenyan jurisprudence.
First, in Humphrey Nyaga Thomas & 25 others v Kenyatta University [2021] KEELRC 18 (KLR), the Court rejected the use of repeated temporary arrangements to deprive long-serving workers of statutory protection.
Second, in Apopo v Chic Fashions Limited (supra), the Court was similarly critical of the use of daily-paid contracts over an extended period to shield the employer from liability.
Third, in Kenyatta University v Maina (supra), the Court of Appeal affirmed the importance of looking at the substance of the employment relationship rather than allowing the employer’s description of the arrangement to determine the employee’s statutory rights.
Lastly, and most recently, in Kenya County Government Workers’ Union v Embu County Government & another [2026] KECA 1481 (KLR), the Court of Appeal reiterated that the substance of an employment relationship, rather than merely the label attached to it, is important in determining the rights of employees. The Court recognized that prolonged and successive casual engagements cannot be used to circumvent the statutory protections afforded where the nature and continuity of the work demonstrate a continuing employment relationship.
Conclusion
The word “casual” is used so freely in everyday Kenyan conversation that it is easy to forget that it has a particular meaning in employment law. A person who works for a day on an isolated assignment may genuinely be a casual employee. A person who is required to report to the same workplace every working day, perform continuing duties and remain available to the employer for months or years may, however, fall into an entirely different legal category. The law therefore looks beyond the name given to the arrangement. Calling someone a “casual,” “kibarua,” “day worker” or “temporary employee” does not, by itself, determine the employee’s legal status. The court will examine the actual terms and circumstances of the relationship and, where the statutory conditions under section 37 are satisfied, the law itself converts the arrangement into a contract of service with all the relevant entitlements.
For employers, the message is equally straightforward: do not use casual employment as a shield against statutory obligations where the nature of the work and the continuity of the relationship point to something more permanent. For employees, the lesson is to understand that being called a casual does not necessarily make one a casual in the eyes of the law. Perhaps, therefore, the next time a worker hears: “Tomorrow don’t come to work sababu kibarua kimeisha” the appropriate response should not merely be to ask whether the “kibarua” has ended.
The more important question may be: Was there really a “kibarua” in the legal sense to begin with?
