Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No 1687 of 2012· [2013] KEELRC 930 (KLR)

Musembi Kithoe v Twin River Two Estate Limited [2013] KEELRC 930 (KLR)

Industrial Court of Kenya
16 December 2013
1,192 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

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

#
The Claimant sued for unlawful termination of employment, alleging he was employed by the Respondent from 1994, initially as a farmhand and later as a security guard, until October 2008 when his employment was terminated verbally without notice or lawful cause. He claimed three months' notice pay and severance pay at one month's salary per year worked. The Respondent denied a continuous employment relationship, contending the Claimant was a casual worker engaged day to day, and asserted he deserted duty after being redeployed from security work to the farm, allegedly for reporting to work under the influence of alcohol. The Court first determined the Claimant's employment status. The Respondent's own witnesses testified to continuous daily work, and its records covered only a fraction of the employment period. Invoking Section 37(1) of the Employment Act, 2007, the Court converted the employment to a term contract. On salary, the Court adopted the daily rate of Kshs. 160 evidenced in the payment vouchers, since no underpayment was claimed, yielding Kshs. 4,800 monthly. On termination, the Court found no evidence the Claimant was given an opportunity to controvert the allegation of drunkenness, and converted the separation to a normal termination with benefits. A CBA referenced in submissions was not produced, so the Court resorted to statute. The Court awarded one month's notice pay (Kshs. 4,800) and service pay at 15 days' pay per completed year for 14 years (Kshs. 33,600), totalling Kshs. 38,400, with costs to the Claimant. The claim partially succeeded, the full severance and three months' notice claimed being reduced.

Key legal issues

#
01

Whether the Claimant was a casual employee or held a term contract

Holding

The Court converted the Claimant's employment to a term contract under Section 37(1) of the Employment Act, 2007

Reasoning

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.

p. 2
02

Whether the termination was lawful

Holding

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

Reasoning

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.

p. 3
03

The applicable salary for computing the award

Holding

The Court adopted the daily rate of Kshs. 160 shown in the payment vouchers, equating to Kshs. 4,800 monthly

Reasoning

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.

p. 2

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. 1.Conversion of the Claimant's employment to a term contract under Section 37(1) of the Employment Act, 2007
  2. 2.Conversion of the termination to a normal termination with benefits
  3. 3.Award of one month's salary in lieu of notice of Kshs. 4,800
  4. 4.Award of service pay for 14 years at 15 days' pay per completed year of service, Kshs. 33,600
  5. 5.Total award of Kshs. 38,400 to be paid by the Respondent
  6. 6.Respondent to pay the costs of the case

Authorities

#

Legislation

  • Employment ActSection 2
  • Employment ActSection 37(1)

Cases cited (1)

  • Wilfred Bukachi Opwaka Vs Ready Consultancy Company Limited
    Industrial Court Cause No 471 of 2012
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.

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.