Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedPetition filed 03.07.2012 (Industrial Cause No. 1303 of 2010 related)· [2013] KEELRC 373 (KLR)

PETER WAMBUGU KARIUKI AND 16 OTHERS V KENYA AGRICULTURAL RESEARCH INSTITUTE [2013] KEELRC 373 (KLR)

Industrial Court of Kenya (superior court of record)
3 May 2013
BOByram Ongaya
5,809 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

#

Kenya's Industrial Court ruled that long-serving 'casual' workers at KARI were actually permanent employees and awarded them compensation for unfair termination.

What this practically means

#

Executive summary

#
Seventeen former workers of the Kenya Agricultural Research Institute petitioned under Articles 22, 23, 28 and 41 of the Constitution, seeking declarations that they had become permanent employees through years of continuous service, that the respondent's attempt to convert them to casual terms and the subsequent lockout violated their rights to fair labour practices, and that they were entitled to terminal benefits under the Employment Act, 2007. The respondent argued the petition was res judicata and an abuse of process because Industrial Cause No. 1303 of 2010, in which the KPAU had sued over the lockout, had been heard and determined, with both claim and counterclaim rejected. The court held that the earlier cause was decided by the Industrial Court sitting as a tribunal, which lacked primary jurisdiction to enforce fundamental rights; the constitutional issues were substantive and could only be determined by the superior court of record, so the petition was not barred. On the merits, the court found the petitioners were not casual employees since they served far beyond twenty-four hours at a time; continuous service beyond three months converted them to permanent terms under section 37 of the Employment Act. The respondent failed to discharge its burden under section 10(7) to prove terms absent written contracts, and its conduct amounted to constructive, unfair termination breaching Article 41(1) and Article 28. Judgment was entered for the petitioners with declarations, one month's wages in lieu of notice, six months' gross salary as compensation for unfair constructive termination, interest, costs, and certificates of service within thirty days. Claims for overtime, house allowance, and gratuity or service pay were refused for lack of evidential support and because NSSF contributions had been made.

Key legal issues

#
01

Res judicata / abuse of process

Holding

The petition was not barred by res judicata or abuse of process because cause No. 1303 of 2010 was decided by the Industrial Court sitting as a tribunal, which lacked jurisdiction to enforce fundamental rights and freedoms.

Reasoning

The tribunal's award predated the Industrial Court Act, 2011 and the court as a superior court of record. The constitutional question of fundamental rights was substantive, not a mere re-clothing of the earlier claim, and could be litigated before the constitutionally prescribed forum. The doctrine of justiciability pointed to the superior court of record as the correct forum, so the earlier award did not bar the petition.

p. 7
02

Whether the petitioners' rights were breached

Holding

The petitioners were never casual employees; their continuous service of more than three months converted them to permanent terms, and the respondent's unilateral treatment of their service as terminated breached Article 41(1) and Article 28.

Reasoning

Under section 2 of the Employment Act a casual employee works not longer than twenty-four hours at a time; the petitioners served for years without break. The respondent failed to discharge its burden under section 10(7) to prove terms absent written contracts, failed to comply with sections 9(1) and 41, and its conduct amounted to constructive termination violating the petitioners' dignity.

p. 9
03

Remedies

Holding

Petitioners entitled to one month's wages in lieu of notice and six months' gross salary for unfair constructive termination, plus costs and certificates of service; other heads of relief refused for lack of evidential support.

Reasoning

The court modified the prayers: wages were agreed at all material times, one month in lieu of notice was reasonable, and six months' gross salary was fair compensation for the constructive termination given the short-term contracts crystallized into permanent employment. No evidence supported overtime, house allowance or other compensatory reliefs, and service pay was unjustified given NSSF membership.

p. 10

Legal principles established

#
  • Continuous service beyond three months converts a casual employee to permanent terms under section 37 of the Employment Act, 2007; casual employment is a question of fact, not of label.
  • An employer subjects an employee to unfair labour practices under Article 41(1) where, by omission or action, it fails to uphold statutory protections of the employee.
  • Employer conduct that undermines the high trust, confidence and cooperation implied in every employment contract amounts to constructive termination.
  • The Industrial Court, as a superior court of record under the 2010 Constitution and the Industrial Court Act, 2011, is the primary and authoritative forum for enforcement of fundamental rights in employment and labour disputes.

Court orders

#
  1. 1.Declaration that the respondent violated the petitioners' rights to fair labour practices, namely reasonable working conditions including permanent terms and conditions of service as protected under Article 41(1) of the Constitution and the Employment Act, 2007
  2. 2.Declaration that the petitioners were permanent employees of the respondent and the termination of their employment was constructive, unfair and unlawful
  3. 3.Declaration that each petitioner is entitled to payment of wages for one month in lieu of termination notice and payment of six months gross salaries at the rate of the salary at termination for the unfair constructive termination, to be computed by the petitioners, filed in court and served within fourteen days from the date of judgment and recorded in court at a convenient date
  4. 4.The respondent to pay interest on the terminal payments from the date of judgment until full payment
  5. 5.The respondent to pay the costs of the Petition
  6. 6.The respondent to deliver to each petitioner a certificate of service within thirty days from the date of judgment

Authorities

#

Legislation

  • Constitution of Kenya, 2010Articles 10, 22, 23, 28, 41(1)-(5), 162(2)(a), 165(5)(b), 232, 236
  • Employment Act, 2007sections 2, 9(1), 10(7), 37(4), 37(5), 41
  • Universal Declaration on Human RightsArticle 23
  • African Charter on Human and Peoples' RightsArticle 15
  • Science and Technology ActChapter 250 (Laws of Kenya)
  • Industrial Court Act, 2011
  • Civil Procedure RulesOrder VII rule 1(2)
  • Public Officer Ethics Act, 2003section 22
  • Tourism Act, 2012section 37

Cases cited (6)

  • David Kamau v Savings & Loan Kenya Limited
    Civil Case No. 112 of 2007 (ruling of 14.03.2007)
  • Maingi Munyoki v Rebecca Cieranja
    HCCC No. 64 of 1986 (ruling of 3.12.2009)
  • Guled Housing Company Limited v Dekee Holdings Limited
    High Court Civil Appeal No. 381 of 2011 (ruling of 20.01.2012)
  • Meshack Ageng'o Omondi v Eldoret Municipal Council and Another
    Industrial Court Cause No. 15N of 2010 at Nairobi (ruling of 12.10.2012)
  • Joseph Mwangi v the Board of Governors, Mwiruti Secondary School
    Cause No. 13 of 2012 at Nakuru, formerly Cause No. 610 of 2012 at Nairobi (judgment of 03.05.2012)
  • Robert Mureithi Ndegwa v the Minister for Tourism
    Industrial Court Petition No. 41 of 2012 at Nairobi (judgment of 16.11.2012)
Jurisdiction invoked
Article 162(2)(a) of the Constitution of Kenya, 2010 as read with Article 165(5)(b) and the Industrial Court Act, 2011

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (4)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "PETER WAMBUGU KARIUKI AND 16 OTHERS V KENYA AGRICULTURAL RESEARCH INSTITUTE [2013] KEELRC 373 (KLR)", Case Analysis (2013). Petition filed 03.07.2012 (Industrial Cause No. 1303 of 2010 related). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/373/eng@2013-05-03

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