Samuel Nalianya Anziya v Chumatech Company [2013] KEELRC 82 (KLR)
The bottom line
#A Kenyan court ruled that 11 years of continuous work made a 'casual' worker a permanent employee entitled to full unfair termination compensation.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was a casual or permanent employee
The Claimant was a permanent employee who worked continuously for eleven years as a gas technician, not a casual general labourer.
The Claimant worked for the Respondent for about eleven years performing similar technical work across different clients. The Respondent failed to provide a written contract as required by Section 9(b) of the Employment Act, and under Section 10(7) bore the burden of proving contractual terms. The Respondent's response was feeble, and its admissions of monthly payments, failure to grant leave and failure to register the Claimant with NSSF and NHIF corroborated continuous employment.
Whether the employment was unlawfully terminated or the Claimant absconded
The termination was unlawful and unfair: there was no valid reason, no notice and no fair procedure.
The two versions were mutually destructive but the Claimant's account was more credible. The Respondent was not candid about the nature of the relationship and the work performed, and the sending of Kshs.8,000/= via M-Pesa was more believable as part-payment of arrear salary than as bus fare. The Claimant was sent home after demanding salary arrears. Termination without valid reason, notice or opportunity to be heard breached Sections 45(2)(a) and 45(2)(c) of the Employment Act.
What remedies are applicable
Gratuity at 15 days per year, one month's notice pay, leave pay for 5 years and compensation of ten months' salary were awarded.
Gratuity flowed from the Respondent's failure to register the Claimant with NSSF under Section 35(5) as read with Section 35(6)(d), calculated as guided by Section 40. Leave pay was mandatory under Section 28(1)(a). Compensation of ten months' salary was assessed under Section 49(4) factors: eleven years of service, no adverse record, no contribution to the termination, and loss of social security benefits. Notice pay followed from the absence of notice.
Legal principles established
#- Where a contract of service for work exceeding three months is not in writing, the employer bears the burden of proving or disproving the alleged terms of employment.
- A long, continuous working relationship of about eleven years performing similar work establishes permanent employment notwithstanding the absence of a written contract.
- An employer must grant an employee twenty-one working days leave with full pay after every twelve consecutive months of service.
Court orders
#- 1.Payment of service gratuity at the rate of 15 days salary per year for the 11 years in the sum of Kshs.82,500/=.
- 2.Payment of one month salary in lieu of notice in the sum of Kshs.11,000/=.
- 3.Payment in lieu of leave for the 5 years claimed in the sum of Kshs.38,500.
- 4.Compensation for unlawful and unfair termination at the rate of ten months salary in the sum of Kshs.110,000/=.
- 5.Total award of Kshs.242,000/=.
- 6.The Respondent to provide the Claimant with a Certificate of Service for the eleven (11) years served.
- 7.The Respondent to pay costs of the suit.
- Jurisdiction invoked
- Employment and labour relations dispute under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samuel Nalianya Anziya v Chumatech Company [2013] KEELRC 82 (KLR)", Case Analysis (2013). Memorandum of Claim dated 30th August, 2010 (filed 3rd September, 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/82/eng@2013-11-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.