JOSEPHAT AMBUBI MUSUMBA & ANOTHER V VEGRO KENYA LIMITED [2012] KEELRC 31 (KLR)
The bottom line
#A Kenyan court ruled that employees who keep working after their fixed-term contracts expire become monthly employees who can only be dismissed with one month's notice and a valid reason.
What this practically means
#Executive summary
#Key legal issues
#Fairness of the terminations
Both terminations were unfair because the employer gave no reasons, the claimants learned of the termination from colleagues, and the letters relied on were dated 31st November, a non-existent date, and referred to a non-existent contract
Section 41 of the Employment Act obliges the employer to explain reasons for termination. The claimants discovered their termination from fellow employees; the purported letters were never received, were dated 31st November 2009 (a non-existent date), and purported to terminate a contract that had expired in 2008. Having worked a year without a contract, they were deemed monthly employees terminable by one month's notice under sections 35(1)(c) and 36.
Entitlement to notice pay
Each claimant awarded one month's salary in lieu of notice: Kshs.18,440 to the 1st claimant and Kshs.14,485 to the 2nd
Because the continued employment after contract expiry converted to monthly contracts, terminable only by one month's notice or pay in lieu, and the termination was unfair, each claimant was entitled to one month's salary in lieu of notice at their respective last salaries.
Entitlement to overtime
Both claimants awarded overtime calculated on hours worked beyond the contracted 45-hour week at 1.5 times the hourly rate
RW1 admitted the 1st claimant worked 10 hours a day, 60 hours a week, against a contracted 45 hours, and that neither claimant was paid overtime. The 2nd claimant, though his contract left hours unspecified, could not be expected to work more hours than other employees, so the same 45-hour benchmark was applied. Overtime was computed at 1.5 times the hourly rate (salary divided by 195) over 182 weeks.
Compensation for unfair termination
4 months' salary (Kshs.73,740) for the 1st claimant and 2 months' salary (Kshs.28,970) for the 2nd claimant
Having found the terminations unfair, the court exercised discretion to award compensation, taking into account the 1st claimant's 6 years and the 2nd claimant's 3 years of service and the circumstances under which they were terminated, awarding less than the 12 months' salary claimed.
Legal principles established
#- Where an employee continues working after expiry of a fixed term contract, the employment is by operation of law converted to a monthly contract terminable by one month's notice or payment of one month's salary in lieu
- Section 41 of the Employment Act requires an employer to explain to the employee the reasons for termination; failure to do so renders the termination unfair
Court orders
#- 1.Judgment for Josephat Ambubi Musumba in the sum of Kshs.497,420
- 2.Judgment for Kasavu Musyoki Musembi in the sum of Kshs.590,988
- 3.Each party to bear its own costs
- Jurisdiction invoked
- Original jurisdiction of the Industrial Court under the Industrial Court Act over employment and labour relations disputes
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "JOSEPHAT AMBUBI MUSUMBA & ANOTHER V VEGRO KENYA LIMITED [2012] KEELRC 31 (KLR)", Case Analysis (2012). Cause 851 & 861 of 2011 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2012/31/eng@2012-12-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.