Hussein Diba Kosi & another v Mombasa Maize Millers Ltd & another [2014] KEELRC 207 (KLR)
The bottom line
#A Kenyan court converted two long-serving casual guards to permanent status, awarded their dues, and made two companies jointly liable.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimants were dismissed or absconded
The claimants were verbally dismissed without reason; the defence of abscondment was rejected as unrebuted.
The claimants testified they returned after the 7-day suspension but were dismissed by Suleiman Nagela. Nagela never testified or recorded a statement to rebut this, and never responded to the labour officer's letter. The defence witnesses shied away from the witness box to avoid cross-examination, leaving the claimants' evidence unrebutted and believed by the court.
Status of casual employees
The court exercised its power under Section 37 of the Employment Act to convert the claimants from casual status to that of permanent employees entitled to leave and service pay.
The claimants worked continuously from 2010 and 2009 respectively to 14/8/2013 as casuals paid daily, without paid leave or rest days. The court found this a proper case for conversion under Section 37, entitling them to one month's notice pay, 21 days leave per year of service, and service pay at 15 days per year of service.
Liability as between respondent and third party
Both the respondent and the third party were held jointly and severally liable for the claimants' dues.
Neither party tendered tangible evidence of their relationship, instead playing a 'ping pong' of allegations over who employed the claimants. Casual labour vouchers drawn on the third party's letterhead were unexplained. The unrebutted evidence was that the claimants were recruited and dismissed by the respondent's Chief Security Officer, and the unexplained relationship justified joint and several liability.
Compensation for unfair dismissal
Declined because the dismissal without notice was lawful under Section 36 of the Employment Act subject to payment in lieu of notice.
Although the claimants were dismissed without any reason, Section 36 permits termination without notice upon payment of remuneration for the notice period. Since the court awarded one month's salary in lieu of notice, the employer's dismissal was within its statutory powers and no compensation for unfair dismissal was payable.
Legal principles established
#- An employer may terminate a contract of service without notice under Section 36 of the Employment Act, provided the termination is not for misconduct, poor performance or incapacity and the employer pays remuneration in lieu of notice.
- Under Section 37 of the Employment Act the court may convert casual employees to the status and benefits of permanent employees.
- Where respondent and third party engage in a 'ping pong' of denial of employer status without tendering tangible evidence of their relationship, both are jointly and severally liable for the employees' dues.
Court orders
#- 1.Judgment entered against the respondent and the third party jointly and severally in favour of the 1st claimant for Ksh.72,450
- 2.Judgment entered against the respondent and the third party jointly and severally in favour of the 2nd claimant for Ksh.91,350
- 3.Claimants to be issued with certificates of service
- 4.Costs and interest to the claimants
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (claim for employment dues following summary dismissal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hussein Diba Kosi & another v Mombasa Maize Millers Ltd & another [2014] KEELRC 207 (KLR)", Case Analysis (2014). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/207/eng@2014-10-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.