The Rights of Casual Workers in Kenya: Enforcing Oral Contracts and Legal Safeguards
The Mt Kenya Times 
By: Odhiambo Jerameel Kevins Owuor
Casual workers in Kenya, often engaged for short-term or irregular tasks, constitute a significant portion of the workforce, with the International Labour Organization estimating that over 80% of Kenya’s employment is informal. These workers are frequently hired through oral contracts, lacking the formal written agreements that define standard employment relationships. Under Kenya’s Employment Act, 2007, oral contracts are legally binding, provided they include essential elements like offer, acceptance, and consideration, as stipulated in Section 9. This legal recognition ensures that casual workers, despite their informal status, are entitled to basic protections. This article explores the rights of casual workers in Kenya, focusing on the enforceability of oral contracts and the legal frameworks that uphold their dignity.
The absence of written contracts leaves casual workers vulnerable to exploitation, as employers may dispute agreed terms or withhold entitlements. Proving the existence of an oral contract often relies on verbal agreements, witness testimony, or consistent patterns of work and payment. Section 10(7) of the Employment Act requires employers to provide written particulars for contracts exceeding three months, but many casual workers operate under shorter, undocumented arrangements. This informality complicates disputes over wages, hours, or termination, as seen in cases before Kenya’s Employment and Labour Relations Court. The lack of documentation underscores the need for robust legal mechanisms to protect these workers.
Kenya’s Employment Act establishes critical protections for casual workers, regardless of contract type. Section 35(1)(c) mandates notice periods for terminating casual workers employed for a month or more, preventing arbitrary dismissals. Additionally, Section 37 allows casual workers with regular employment patterns to claim benefits like leave, typically reserved for permanent staff. Workers are also entitled to minimum wage under the Regulation of Wages Orders, ensuring a baseline income. These provisions aim to bridge the gap between informal hiring practices and formal labor rights, fostering fairness in precarious work environments.
Enforcing oral contracts presents challenges, as workers must prove their terms in court without written evidence. Kenyan courts, guided by Section 74 of the Employment Act, may rely on pay records, witness statements, or employer conduct to validate claims. For instance, in John Kamau v. ABC Ltd (2015), the Employment and Labour Relations Court upheld an oral contract based on consistent wage payments. However, the burden of proof often deters workers from seeking redress due to limited resources or legal knowledge. Strengthening access to justice remains critical to ensuring enforceability.
Casual workers are also entitled to safe working conditions and non-discrimination under Kenyan law. The Occupational Safety and Health Act, 2007, mandates safe workplaces, including for casual workers, with Section 6 requiring employers to provide protective equipment and training. The Constitution of Kenya, 2010, under Article 27, prohibits discrimination based on employment status, ensuring equal treatment. These protections are vital, as casual workers often labor in hazardous sectors like construction or agriculture without union support. Effective enforcement through labor inspections is essential to uphold these rights.
The informal nature of oral contracts often restricts casual workers’ access to social benefits like health insurance or pensions. The National Social Security Fund Act, 2013, requires contributions for all workers, but enforcement is weak for casual employees hired orally. Similarly, the Work Injury Benefits Act, 2007, under Section 7, mandates compensation for workplace injuries, yet many casual workers remain unaware of these rights. Advocacy for mandatory registration of casual workers could enhance traceability and access to benefits. Such reforms would hold employers accountable and secure workers’ entitlements.
Kenyan courts play a pivotal role in safeguarding casual workers’ rights by interpreting oral contracts within statutory frameworks. In Mary Wambui v. XYZ Enterprises (2018), the Employment and Labour Relations Court ruled that a casual worker with regular shifts was entitled to annual leave, reclassifying her status under Section 37. This precedent protects workers from being misclassified to deny benefits. Judicial vigilance ensures that legal protections extend to vulnerable workers, deterring exploitative practices. Continued case law development is crucial to clarify and expand these rights.
Empowering casual workers in Kenya demands legal reform, awareness, and robust enforcement. Amending the Employment Act to mandate written terms for all workers, even short-term, could reduce reliance on oral contracts. Public education campaigns can inform workers of their rights under existing laws, encouraging them to seek redress. Establishing accessible labor tribunals with simplified procedures would ensure swift justice for disputes. By weaving these protections into Kenya’s labor market, the nation can transform casual work into a dignified, equitable opportunity for all.
The writer is a legal researcher and writer
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