Musembi Kithoe v Twin River Two Estate Limited [2013] KEELRC 930 (KLR)
The bottom line
#Kenya's employment court ruled that a 'casual' worker engaged continuously for over a month is legally a term-contract employee entitled to notice pay and service pay on termination.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was a casual employee or held a term contract
The Court converted the Claimant's employment to a term contract under Section 37(1) of the Employment Act, 2007
The Respondent's own witnesses testified that the Claimant worked continuously between 1994 and 1997 and every day thereafter, contradicting the claim of day-to-day casual engagement. The records produced (muster rolls and vouchers) covered only a small portion of the employment period. Continuous work beyond one month triggered statutory conversion to a term contract.
Whether the termination was lawful
The termination was converted to a normal termination with benefits because the Claimant was not given an opportunity to be heard on the alleged ground of reporting to work under the influence of alcohol
Although the Respondent alleged desertion after redeployment, the union correspondence showed the grievance concerned relocation from security to farm work. No evidence established that the Claimant was afforded a chance to controvert the allegation of drunkenness, rendering the separation irregular.
The applicable salary for computing the award
The Court adopted the daily rate of Kshs. 160 shown in the payment vouchers, equating to Kshs. 4,800 monthly
The Claimant claimed a daily rate of Kshs. 230, but the Respondent's payment vouchers showed Kshs. 160 as at October 2008. Since there was no claim for underpayment, the Court used the actual rate paid at termination to compute monthly pay.
Legal principles established
#- An employee employed on casual terms who works continuously for one month is deemed converted to monthly contract terms under Section 37 of the Employment Act
- Termination without giving an employee an opportunity to controvert the reason alleged against him is irregular
Court orders
#- 1.Conversion of the Claimant's employment to a term contract under Section 37(1) of the Employment Act, 2007
- 2.Conversion of the termination to a normal termination with benefits
- 3.Award of one month's salary in lieu of notice of Kshs. 4,800
- 4.Award of service pay for 14 years at 15 days' pay per completed year of service, Kshs. 33,600
- 5.Total award of Kshs. 38,400 to be paid by the Respondent
- 6.Respondent to pay the costs of the case
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, 2007; Labour Relations Act framework)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Cavine Ouma Were v Pioneer Plumbers Limited [2020] KECA 918 (KLR)[2020] KECA 918 (KLR)24 Jan 2020
Cite this brief
#Cite this brief
Caselaw, "Musembi Kithoe v Twin River Two Estate Limited [2013] KEELRC 930 (KLR)", Case Analysis (2013). Cause No 1687 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/930/eng@2013-12-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.