Jackson Muiruri Wathigo T/A Murtown Supermarket v Lilian Mutune
The bottom line
#Kenya's Court of Appeal confirmed employers who keep no written employment records bear the burden of proving their version, and long-serving casual workers automatically become monthly employees.
What this practically means
#Executive summary
#Key legal issues
#Commencement date of the respondent's employment
Employment commenced on 14th September 2011, not August 2010; the application letter contradicted the respondent's assertion of earlier employment.
The court reasoned that it made no sense for a person alleging employment from August 2010 to apply in September 2011 for that same employment. The letter's language showed a request for fresh engagement rather than renewal, and the labour officer's computation had also excluded the earlier period.
Nature of engagement - casual versus monthly salaried employee
Even if initially casual, the duration of employment converted the respondent to a monthly salaried employee under Section 37 of the Employment Act.
No documentary evidence existed of the terms of engagement because the employer kept no records. Section 10(7) placed the burden on the employer, which he failed to discharge. The duration of over two years triggered automatic conversion under Section 37 regardless of the initial casual character.
Salary arrears and applicable minimum wage
The appellant owed salary arrears for July to October 2013 and 10 days of November 2013, computed at Kshs. 60,717.80 using the labour officer's Kshs. 14,011.80 figure inclusive of housing allowance.
The appellant produced no evidence of payment of salary for the arrears period, so the benefit of doubt went to the respondent. Although the statutory minimum wage was Kshs. 12,184.25, it excluded the housing allowance the employer was bound to provide under Section 31 of the Employment Act, making the higher figure reasonable.
Underpayment computation
Underpayment for the period July to October 2013 could not arise once salary arrears had been awarded for the same period; only May and June 2013 underpayment of Kshs. 20,022.80 was payable.
Once salary arrears were calculated and awarded at the prevailing basic minimum monthly wage from July 2013 to 10th November 2013, simultaneous underpayment for those months would be double-counting. The trial judge therefore erred in upholding that portion of the labour officer's computation.
Limitation defence raised for the first time on appeal
The defence that certain claims were time barred under Section 90 of the Employment Act was rejected because it was raised for the first time on appeal.
The appellant never raised the limitation point at the ELRC. Appellate jurisdiction extends only to issues presented before the trial court; allowing a new defence would deprive the court of the trial court's reasoning and prejudice the respondent as an afterthought.
Legal principles established
#- On a first appeal the Court of Appeal's primary role is to re-evaluate the evidence and draw its own conclusions, while bearing in mind it did not see the witnesses.
- Where an employer fails to keep or produce written particulars of employment as required under Section 10(7) of the Employment Act, the burden of proof falls on the employer to establish its contention and disprove the employee's allegations.
- A casual employee engaged continuously beyond the statutory period is automatically converted, by Section 37 of the Employment Act, to a monthly salaried employee.
- A party cannot raise a new defence for the first time on appeal; the appellate court lacks the benefit of the trial court's reasoning and the defence is an afterthought prejudicial to the respondent.
- An appellate court may only interfere with an award of the trial court where the judge took into account an irrelevant factor, left out a relevant one, or the amount is so inordinately low or high as to be a wholly erroneous estimate.
Court orders
#- 1.A declaration that the respondent was engaged by the appellant from 14th September 2011 up to 10th November 2013
- 2.Setting aside the computation of underpayment of wages for the period between 1st May 2013 and 30th May 2013 assessed at Kshs. 60,070.80 and substituting Kshs. 20,022.80 for the months of May and June 2013
- 3.The appellant to pay the respondent terminal dues totalling Kshs. 233,325, excluding any amount that may have been paid prior to the determination of the appeal
- 4.Each party to bear their own costs of the appeal; costs at the ELRC awarded to the respondent
- On appeal from
- Employment and Labour Relations Court of Kenya at Nyeri
- ELRC No. 96 of 2014
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction over the Employment and Labour Relations Court (the judgment does not cite a specific provision)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jackson Muiruri Wathigo T/A Murtown Supermarket v Lilian Mutune", Case Analysis (2021). Civil Appeal No. 93 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/388/eng@2021-07-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.