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Court of AppealPartially AllowedCivil Appeal No. 19 of 2017

Rapid Kate Services Limited v John Mutisya & 2 others [2018] KECA 12 (KLR)

Court of Appeal of Kenya
19 April 2018
1,656 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal threw out three workers' claims because they couldn't prove who actually employed them — evidence of engagement and payment is essential.

What this practically means

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Executive summary

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The Court of Appeal at Mombasa (Visram, Koome & Karanja, JJ.A) allowed the appellant's appeal against the judgment of Rika, J. in the Employment and Labour Relations Court, which had decreed that three loaders were regular employees of the appellant and awarded them a combined Kshs. 1,944,000 in compensation, notice pay, annual leave and service pay following termination in March 2014. The appellant contended that the respondents were never its employees but were engaged by Mzee Kassim Mwavyema, an independently contracted 'gang leader' hired to provide loading manpower at his own expense. The appeal was disposed of by written submissions. The court held that Section 37 of the Employment Act permits conversion of a casual employee's contract only where the claimant first proves engagement by the employer on a casual basis and second, work aggregating more than one month, following its decision in Krystalline Salt Limited v Kwekwe Mwakele & 67 others. Unlike the trial judge, the Court found no evidence that the respondents were employed by the appellant: they gave no evidence of how they were engaged, how work was allocated, or who paid their wages. Their witness statement evidence and the gang leader's contract showed they were under the control of, and paid by, Mzee Kassim. The Court allowed the appeal, set aside the judgment of 9th December 2016 in its entirety, substituted an order dismissing the respondents' claim, and awarded the appellant costs of both the appeal and the ELRC suit.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the respondents established that they were employed by the appellant, as opposed to by an independent contractor
  2. 2.Whether the respondents' contracts of service could be converted under Section 37 of the Employment Act
  3. 3.Whether the learned Judge was entitled to the orders he issued in favour of the respondents

Key legal issues

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01

Requirements for conversion of a casual employee's contract under Section 37 of the Employment Act

Holding

Conversion under Section 37 is only available where the claimant proves engagement by the employer on a casual basis and continuous work aggregating more than one month.

Reasoning

The court read Section 37 as imposing two cumulative preconditions before the ELRC can deem a casual employee's contract to be one paying monthly wages. The claimant bears the burden of proving both the identity of the employer and the qualifying period of casual engagement; absent proof of employment by the employer in question, the provision has no application against that employer.

p. 3
02

Burden of proof of an oral employment contract

Holding

A claimant who alleges employment must lead evidence establishing how they were engaged, how work was allocated, and who paid their wages; mere assertion is insufficient even for oral contracts.

Reasoning

The court found that the respondents produced no contract of employment or letter of dismissal and gave no evidence on how they were engaged, how work was allocated, or who paid them. The evidence instead showed they were hired and paid by Mzee Kassim, a contracted gang leader engaged to provide manpower at his own expense, placing them under his control rather than the appellant's.

p. 3

Legal principles established

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  • Before a court may convert a casual employee's contract under Section 37 of the Employment Act, the claimant must first establish engagement by the employer on a casual basis and second, that he or she has worked for that employer for a period aggregating more than one month.

Court orders

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  1. 1.Appeal allowed
  2. 2.Judgment of the ELRC dated 9th December 2016 set aside in its entirety
  3. 3.Substituted with an order dismissing the respondents' claim
  4. 4.Appellant to have costs of both the appeal and the suit in the ELRC

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Martha Karambu Koome
M. K. KoomeJA
Currently serving
majority
majority
On appeal from
Employment and Labour Relations Court at Mombasa
Cause No. 305 of 2015
Jurisdiction invoked
First appeal to the Court of Appeal from a decision of the Employment and Labour Relations Court

Relief refused

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Conversion of the respondents' contracts of service under Section 37 of the Employment Act

The respondents failed to establish that they had been employed by the appellant on a casual basis

p. 3

Compensation for unfair termination and terminal dues as decreed by the ELRC

Fell with the dismissal of the employment claim and setting aside of the judgment below

Costs

The appellant shall have costs of both the appeal and the suit in the ELRC.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

before the court can convert a contract of service thereunder, the claimant ought to establish first, that he/she has been engaged by the employer in question on a casual basis and second, he/she has worked for the said employer for a period aggregating to more than one month
p. 3Section 37 Employment Act - preconditions for conversion of casual contracts
Even if their engagement was through an oral contract, the respondents needed to put forth evidence to establish such contract. We note that they did not shed light on how they were engaged, how work was allocated to them and who paid their wages.
p. 3Burden of proving an oral contract of employment
It is clear to us that the respondents were under the control of Mzee Kassim and not the appellant. As such, the respondents' claim that they had been employed by the appellant must fail.
p. 3Employment relationship determined by control and payment of wages
We set aside the judgment dated 9th December, 2016 in its entirety and substitute the same with an order dismissing the respondents'. The appellant shall have costs of both the appeal and the suit in the ELRC.
Final orders - disposition of the appeal

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Rapid Kate Services Limited v John Mutisya & 2 others [2018] KECA 12 (KLR)", Case Analysis (2018). Civil Appeal No. 19 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/12/eng@2018-04-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.