Joyce Mueni Wambua v East African Growers Ltd [2014] KEELRC 709 (KLR)
The bottom line
#A Kenyan court ruled that a casual worker with nine years of continuous service was legally a permanent employee and awarded her Kshs. 228,000 for unfair termination.
What this practically means
#Executive summary
#Key legal issues
#Status of the Claimant's employment - casual or contract of service on monthly terms
Having served continuously for nine years, the Claimant was converted from a casual to a monthly contract employee entitled to statutory benefits
Section 37 of the Employment Act deems a casual who works continuously for one month to be employed on monthly terms. The court found as a fact that the Claimant worked continuously from August 1998 to November 2007. The Respondent produced no employment or payment records to support its casual defence; its witness conceded she had no evidence to refute the Claimant's claim of nine years' continuous service. The court thus adopted Justice Onyango's reasoning in Wilfred Bukachi Opwaka.
Whether the summary termination was wrongful and unfair
The termination was wrongful and unfair as there was no valid reason and no fair procedure was followed
The Claimant, injured in the course of employment and advised to retire on medical grounds, was summarily terminated by the HR manager without an opportunity to explain. The employer failed to justify the termination as required by Section 47(5), while the Claimant proved on a balance of probability that no valid reason existed. Termination contrary to Sections 45(1) and 45(2)(a) and (c) of the Employment Act was accordingly unfair.
Entitlement to leave pay, notice pay and service gratuity
The Claimant was entitled to 21 days' leave per completed year, one month's salary in lieu of notice, and service gratuity under Section 35 of the Employment Act
As a converted monthly employee under Section 37, the Claimant accrued statutory annual leave for nine years, which she never took or was paid for. Having received no notice, she was entitled to one month's salary in lieu. Since the Respondent neither registered her with NSSF nor remitted dues and she was not in any pension scheme, Section 35 entitled her to service gratuity, assessed at the retrenchment rate of 15 days' salary per completed year under Section 40.
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
- Under Section 47(5) of the Employment Act, the employer bears the burden of demonstrating justification for termination
- Termination without valid reason and without fair procedure is wrongful and unfair under Section 45(1) as read with Section 45(2)(a) and (c) of the Employment Act
Court orders
#- 1.Payment of leave pay for nine years at 21 days per completed year: Kshs.81,000
- 2.Payment of one month's salary in lieu of notice: Kshs.9,000
- 3.Payment of service gratuity at 15 days salary per completed year of service: Kshs.148,000 (approximately)
- 4.Compensation of 10 months' salary for unlawful and unfair termination: Kshs.90,000
- 5.Total award of Kshs.228,000 to the Claimant
- 6.Respondent to pay costs of the suit
- Jurisdiction invoked
- Original jurisdiction of the Industrial Court under a Memorandum of Claim (Employment and Labour Relations)
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.
- Janet Kanini Muola v East African Growers Ltd [2014] KEELRC 1188 (KLR)[2014] KEELRC 1188 (KLR)26 Jun 2014
Cite this brief
#Cite this brief
Caselaw, "Joyce Mueni Wambua v East African Growers Ltd [2014] KEELRC 709 (KLR)", Case Analysis (2014). I.C Case (Memorandum of Claim dated 11th May, 2012; Respondent's Memorandum of Response dated 15th August, 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/709/eng@2014-02-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.