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 Number 1777 of 2011· [2014] KEELRC 733 (KLR)

Florence Ndinda Muthoka v East African Growers Limited [2014] KEELRC 733 (KLR)

Industrial Court at Nairobi
23 January 2014
1,523 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
The Claimant, employed by the Respondent from 7th April 1997 as a Packer of horticultural export products at Kshs. 310 per day, was denied work on returning from two days' bereavement leave in June 2009, with no termination letter issued. She claimed a declaration of unfair termination, one month's notice pay, 12 years' annual leave pay, service pay and 12 months' salary in compensation, totalling Kshs. 293,020 plus interest and costs. The Respondent contended she was a casual, seasonal worker paid daily, whose recommendation letter showed she worked 'on and off', and that she left of her own free will - though its Statement of Response at paragraph 7 admitted summary dismissal. Rika J held it was ludicrous to characterise a 12-year relationship with a business operating year-round as casual or seasonal, invoking Section 37 of the Employment Act 2007 to deem the contract one for monthly wages and declaring the Claimant a regular employee. The Respondent, having proceeded on the wrong premise, gave no valid reason and followed no fair procedure as Sections 41, 43 and 45 require; termination was unfair. The Court awarded notice pay of Kshs. 9,100, three months' compensation of Kshs. 27,300, service pay of Kshs. 63,000 and leave pay of Kshs. 88,200, totalling Kshs. 187,600, payable within 30 days. Compensation was granted at three rather than the twelve months sought, and no order was made on costs.

Key legal issues

#
01

Whether the Claimant was a casual or seasonal employee

Holding

The Claimant was a regular employee despite being engaged on an on-and-off daily basis

Reasoning

The relationship lasted 12 years from 1997 to 2009, and the Respondent conceded its horticultural packaging and export business runs throughout the year. The term 'seasonal' could only apply to farms supplying the Respondent, not to employees of a business operating continuously. Section 37 of the Employment Act deems casual employment of sufficient duration to be monthly employment, and the Court may declare regular terms under Section 37(4).

p. 2
02

Whether the summary dismissal was fair and justified

Holding

Termination was unfair - no valid reason and no fair procedure

Reasoning

The Respondent acted on the wrong premise that the Claimant was casual or seasonal, so it saw no need to justify termination or act fairly. Having found the Claimant to be a regular employee, the Court held the termination failed the requirements of Sections 41, 43 and 45 of the Employment Act 2007, entitling the Claimant to compensation and terminal benefits.

p. 3
03

Entitlement to terminal benefits and compensation

Holding

Claimant awarded notice pay, service pay, leave pay and 3 months' compensation

Reasoning

One month's salary in lieu of notice at Kshs. 9,100 was granted. Service pay at 15 days' salary per completed year for 12 years totalled Kshs. 63,000, the Respondent not showing any pension scheme. Leave pay of 21 days per year for 12 years totalled Kshs. 88,200. Compensation was capped at 3 months' salary (Kshs. 27,300) rather than the 12 months sought.

p. 3

Legal principles established

#
  • An employment relationship lasting many years, even if intermittent within a week, cannot be characterised as casual or seasonal where the employer's business operates continuously throughout the year
  • Under Section 37 of the Employment Act 2007, a casual employee working the equivalent of one month or more, or performing work not completable within three months, is deemed employed on monthly terms, and the Court may vary terms and declare regular employment
  • Once an employee is found to be a regular employee, termination must be supported by valid reason and fair procedure under Sections 41, 43 and 45 of the Employment Act 2007

Court orders

#
  1. 1.Declaration that termination of the Claimant's contract was unfair
  2. 2.Respondent to pay the Claimant one month salary in lieu of notice at Kshs. 9,100
  3. 3.Respondent to pay three months' salary in compensation at Kshs. 27,300
  4. 4.Respondent to pay service pay at Kshs. 63,000
  5. 5.Respondent to pay leave pay of Kshs. 88,200 - total Kshs. 187,600
  6. 6.Full amount to be paid by the Respondent to the Claimant within 30 days of delivery of the Award
  7. 7.No order on costs

Authorities

#

Legislation

  • Employment Act 2007Section 37
  • Employment Act 2007Section 37(4)
  • Employment Act 2007Section 35(1)(c)
  • Employment Act 2007Sections 41, 43 and 45
Jurisdiction invoked
Industrial Court jurisdiction under the Employment Act 2007 over unfair and unlawful termination (Labour Relations Act dispute - termination of employment)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Florence Ndinda Muthoka v East African Growers Limited [2014] KEELRC 733 (KLR)", Case Analysis (2014). Cause Number 1777 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/733/eng@2014-01-23

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