Michael O. Odongo v Kenya Electricity Generating Co. Ltd [2014] KEELRC 1328 (KLR)
The bottom line
#A Kenyan court ruled that seven years of continuous short-term contracts made a Kengen worker a permanent employee, awarding him Kshs 1.26 million for unfair termination.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant was an employee of the respondents
The claimant was an employee of Kengen, not of any separate project entity
The claimant exhibited contracts App 1 to 40 crafted on the respondents' official letterheads and signed for the Chief Manager Human Resources covering continuous service from July 2005 to August 2012. The projects were Kengen projects, payable and supervised by Kengen staff; denying the relationship was to deny the obvious.
Whether the claimant was a casual or permanent employee
By virtue of s.37 Employment Act 2007, the claimant's casual employment converted automatically to permanent status after continuous service beyond three months
The claimant served on short-term contracts of three months to one month continuously for seven years. Section 37(1) deems such a contract one payable monthly where continuous work exceeds the statutory period, and the court invoked s.37(4) to declare the employee employed on permanent terms.
Whether termination was lawful
Termination was unlawful and unfair as the claimant was given neither notice nor a hearing; the proper mode was redundancy under s.40
Having ceased to be a casual worker, the claimant's termination had to follow s.41 of the Employment Act, requiring notice and a hearing. Since the project he served had wound up, the respondents should have treated the separation as redundancy and paid the attendant dues under s.40.
Entitlement to dues comparable to permanent employees
Claim for allowances matching other permanent employees failed for lack of proof of amounts payable
While the converted employee was entitled to dues as other permanent employees, the claimant did not exhibit evidence of what other employees in his cadre were earning. Claims cannot be granted without proof of the amounts payable.
Legal principles established
#- An employer cannot deny an employment relationship by asserting the employee served a project rather than the company where the project is the employer's own, paid and supervised by it
- Casual employment automatically converts to permanent status where the employee works continuously beyond the statutory threshold under s.37 Employment Act 2007
- Termination of a converted (permanent) employee requires notice and a hearing under s.41 Employment Act; denial of both renders termination unlawful and unfair
Court orders
#- 1.1 month salary in lieu of notice = Kshs 35,000/=
- 2.Severance pay at 15 days for each year worked = Kshs 122,500/=
- 3.Leave for the 7 years = Kshs 245,000/=
- 4.House allowances at 15% of salary for 84 months = Kshs 441,000/=
- 5.12 months salary as compensation for unlawful termination = Kshs 420,000/=
- 6.Total award of KSHS 1,263,500/= plus costs
- 7.Claimant to be issued with a certificate of service
- Jurisdiction invoked
- Employment and labour relations dispute before the Industrial Court (dispute on terms and conditions of service; court exercises conversion power under s.37(4) Employment Act 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Peter Mwendwa Kaliki v Public Service Commission of Kenya & another [2016] KEELRC 447 (KLR)[2016] KEELRC 447 (KLR)11 Oct 2016
- Mutemi Musyoka v Public Service Commission of Kenya & Another [2016] KEELRC 428 (KLR)[2016] KEELRC 428 (KLR)11 Oct 2016
Cite this brief
#Cite this brief
Caselaw, "Michael O. Odongo v Kenya Electricity Generating Co. Ltd [2014] KEELRC 1328 (KLR)", Case Analysis (2014). Memo of claim filed 20.2.2013 (Industrial Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1328/eng@2014-09-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.