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ELRCDismissedCause No. 1470 of 2013· [2014] KEELRC 1393 (KLR)

Shadrack Kahungani Mukwana v Wines of the World Limited [2014] KEELRC 1393 (KLR)

Industrial Court of Kenya at Nairobi
7 November 2014
DMD.K. Njagi Marete
2,832 words in judgment
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The bottom line

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Kenya's Industrial Court dismissed a store assistant's unfair termination claim because his need-based engagement was casual employment, terminable without notice.

What this practically means

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Executive summary

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The claimant, employed allegedly from 10th August 2010 as a Store Assistant at Ksh.450 per day, claimed he was forced to work six days a week including public holidays without overtime, was never issued a written contract, and on 19th January 2012 was simply told he was no longer employed. He sought declarations that his employment was a contract of service and that his dismissal was unlawful, reinstatement, or alternatively terminal dues totalling Ksh.152,550, with costs and interest. The respondent, through a witness statement of its Human Resource Assistant Irene Ogolla and written submissions, denied permanent employment, asserting the claimant was engaged casually on a need basis between June and December 2011 and paid a weekly stipend, and that a letter of recommendation dated 24th June 2013 was fraudulently obtained. The court framed four issues: nature of employment, lawfulness of termination, entitlement to relief, and costs. Although it reviewed section 37 of the Employment Act and quoted extensively from Peter Gikaria Wambugu vs. Muhotetu Farmers Co. Ltd., it declined to follow that reasoning, holding instead that on a balance of probabilities the respondent's evidence prevailed and the claimant was a casual, need-basis employee. Applying section 35(1)(a), under which a daily-wage contract is terminable without notice at the close of any day, it held no unfair termination arose. The claim was dismissed with each party bearing its own costs, delivered on 7th November 2014 by D.K. Njagi Marete, Judge.

Key legal issues

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01

Nature of the claimant's employment

Holding

The employment was casual, on a need basis, not permanent or monthly

Reasoning

The claimant alleged permanent undocumented employment; the respondent asserted casual, need-based engagement. Relying on the balance of probabilities and the respondent's unchallenged witness statement of Irene Ogolla, the court preferred the respondent's account that the claimant was called to assist only when needed and paid a weekly stipend. Although the court cited section 37 and the Peter Gikaria Wambugu case on deemed conversion of casual employment, it declined to apply them to these facts.

p. 5
02

Whether termination was wrongful, unfair and unlawful

Holding

No unfair termination arose because a casual employee engaged on need basis could have services dispensed with without the section 35(1)(a) notice regime

Reasoning

The respondent invoked section 35(1)(a) of the Employment Act, under which a daily-wage contract is terminable at the close of any day without notice. The court accepted this submission, holding that the daily/need-basis character of the engagement meant no formal termination procedures under sections 41 and 45 were triggered.

p. 6
03

Entitlement to relief

Holding

The claimant was not entitled to the relief sought given the findings on issues 1 and 2

Reasoning

Having found casual employment and no unfair termination, the court held that the determinations on the first two issues rendered the relief question spent; the declarations, reinstatement and alternative terminal dues could not issue.

p. 6
04

Costs

Holding

Each party to bear its own costs

Reasoning

The court considered costs 'tricky in the circumstances' and, on the facts, ordered each party to bear its own costs rather than awarding costs to the successful respondent.

p. 6

Legal principles established

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  • Parties must not only plead but prove their cases on a balance of probabilities
  • Where employment is casual and engaged on a need basis, no case of unfair termination arises under section 35(1)(a) of the Employment Act

Court orders

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  1. 1.Dismissal of the claimant's claim
  2. 2.Each party to bear its own costs of the cause

Authorities

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Legislation

  • Employment Act, 2007Section 45
  • Employment Act, 2007Section 41(1)
  • Employment Act, 2007Section 37
  • Employment Act, 2007Section 35(1)(a)
  • Employment Act, 2007Sections 35(1)(c), 42(1), 44(3), 44(4), 46, 51

Cases cited (1)

  • Peter Gikaria Wambugu vs. Muhotetu Farmers Co. Ltd.
    (2014) eKLR
Jurisdiction invoked
Industrial Court jurisdiction over employment and labour relations disputes (Employment Act, 2007; Industrial Court Act)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Shadrack Kahungani Mukwana v Wines of the World Limited [2014] KEELRC 1393 (KLR)", Case Analysis (2014). Cause No. 1470 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1393/eng@2014-11-07

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