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ELRCPartially AllowedCause No. 107 of 2010· [2013] KEELRC 939 (KLR)

Silas Mutwiri v Haggai Multi-Cargo Handling Services Limited [2013] KEELRC 939 (KLR)

Industrial Court of Kenya
17 December 2013
MMM. Mbaru
2,753 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled a 'casual' worker with four years' continuous service was actually a permanent employee entitled to leave, overtime and service pay, but not dismissal damages.

What this practically means

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Executive summary

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The claimant, a loader/general worker, sued for wrongful dismissal and terminal dues after being summarily dismissed on 6 March 2009 following an incident in which a fellow employee was injured with a wheel spanner. The claimant described the incident as an accident while alighting from a lorry; the respondent maintained he assaulted the colleague, an account reported to the police, and that dismissal for gross misconduct under section 44(4)(g) of the Employment Act required no notice or dues. The court framed three questions: the claimant's casual status, his rights, and available remedies. It held that under sections 2 and 37 of the Employment Act, continuous employment beyond the statutory thresholds converts casual employment into a term contract by operation of law; with four years of continuous service, the claimant was not a casual employee. The respondent admitted never issuing pay slips despite the mandatory duty in section 20 and failed to produce records required under section 74; the court held the benefit of such omissions accrues to the employee, whose account is taken in good faith. On the dismissal itself, the court found the dismissal valid: the claimant bore the burden of proving the incident was an accident and did not call corroborating witnesses, so no notice or damages (including the 36 months' salary sought) were payable. Terminal dues were however awarded: Kshs. 23,100 for 84 leave days, Kshs. 26,400 for overtime, and Kshs. 12,375 service pay, with each party bearing their own costs. The claim therefore partially succeeded.

Key legal issues

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01

Whether the claimant remained a casual employee throughout his four years of service

Holding

The claimant ceased being a casual employee by operation of law under sections 2 and 37 of the Employment Act, having worked continuously from May 2005 to March 2009

Reasoning

Section 37(1) deems the contract of a casual employee who works continuous days equivalent to at least one month, or performs work not expected to be completed within three months, to be one where wages are paid monthly. The respondent's own witness confirmed continuous service from May 2005 to March 2009 without interruption, in continuous cargo handling work not expected to end.

p. 3
02

Whether the summary dismissal for gross misconduct was valid and whether notice or damages were payable

Holding

The summary dismissal was valid under section 44(4)(g); the claimant bore the burden of proving the incident was an accident and failed to call supporting witnesses, so no notice or damages were payable

Reasoning

Section 44(4)(g) permits summary dismissal where an employee commits or on reasonable grounds is suspected of committing a criminal offence against the employer's detriment. The incident was reported to police and the injured worker treated; the respondent acted prudently. The claimant, alleging an accident, did not call the injured colleague or the driver to corroborate his account, so the dismissal reason stood as valid.

p. 5
03

Whether leave, overtime and service pay were due

Holding

Awarded: 84 leave days at Kshs. 275 per day (Kshs. 23,100), overtime at one hour daily for four years (Kshs. 26,400), and service pay at 15 days per year for three years (Kshs. 12,375) under section 35(6)

Reasoning

The respondent admitted never issuing pay slips despite the mandatory duty in section 20, and failed to produce employment records required under section 74. With no evidence that leave, overtime or statutory dues were paid, the employee's account was taken in good faith. Service pay was due as there was no evidence of NSSF, NHIF or pension contributions.

p. 4

Legal principles established

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  • Casual employment is converted by operation of law into a term contract where a casual employee works continuously for the equivalent of not less than one month or performs work not reasonably expected to be completed within three months
  • Where an employer fails to keep and produce employment records as required by sections 20 and 74 of the Employment Act, the benefit of the omission goes to the employee and the employee's account is taken in good faith

Court orders

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  1. 1.Judgment entered for the claimant
  2. 2.Leave days awarded amounting to Kshs. 23,100.00
  3. 3.Overtime awarded at Kshs. 26,400.00
  4. 4.Service pay awarded at Kshs. 12,375.00
  5. 5.Each party to bear their own costs

Authorities

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Legislation

  • Employment Act, 2007section 2 (definition of casual employee)
  • Employment Act, 2007section 20
  • Employment Act, 2007section 35
  • Employment Act, 2007section 35(6)
  • Employment Act, 2007section 37
  • Employment Act, 2007section 44(4)(g)
  • Employment Act, 2007section 74
  • Employment Act (repealed)Cap 226

Cases cited (2)

  • Joseph Omwenga versus Kenya Revenue Authority
    [2012] eKLR
  • Cynthia Kuvochi Luyegu and others versus Tourism Promotion Services Ltd and others
    [2006] eKLR
Jurisdiction invoked
Original jurisdiction of the Industrial Court of Kenya over employment and labour relations disputes

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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

Cite this brief

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Cite this brief

Caselaw, "Silas Mutwiri v Haggai Multi-Cargo Handling Services Limited [2013] KEELRC 939 (KLR)", Case Analysis (2013). Cause No. 107 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/939/eng@2013-12-17

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