Edith Mutuku & another v Karesh Hardware Construction Co Ltd & another [2015] KEELRC 13 (KLR)
The bottom line
#Kenya's Employment Court ruled that workers without written contracts are not casual labourers, and employers claiming desertion must prove it.
What this practically means
#Executive summary
#Key legal issues
#Status of the Claimants as casual employees
The Claimants were not casual employees as defined in Section 2 of the Employment Act
The Respondents argued the Claimants were casuals because they lacked written contracts. The Court held that absence of a written contract does not make one a casual employee, that it is the employer's duty to issue contracts, and that the deployment of the Claimants (office reception and KCB Agency) showed continuous rather than intermittent work.
Whether the Claimants deserted or were terminated
The terminations were unjustified and unprocedural; desertion was not proved
Desertion is a serious offence and an employer relying on it must prove due notification. No disciplinary process was initiated, so the defence failed. Even leaving over unpaid salary arrears would amount to constructive dismissal. The Court found the terminations violated Sections 45 and 41 of the Employment Act.
House allowance
Claims for house allowance succeeded; 15% of basic salary awarded for the entire employment period
Under Section 31 of the Employment Act the employer must provide housing or pay rent. No contracts existed, and the Respondents' witness admitted the Claimants were neither housed nor paid house allowance. The Court adopted Kshs.9,200.00 (including 15% house allowance) as the monthly salary for tabulating claims.
Unpaid salaries
Claims for unpaid salaries allowed as tabulated by the Claimants in August and September 2012
Documents written and signed by the Claimants themselves showed the salary arrears owed; no credible explanation was given for any adjustment, so the Court adopted the Claimants' own tabulations.
Leave pay and service pay
Both claims allowed
The Respondents produced no leave records to counter the leave claims. Service pay was allowed because there was no evidence of NSSF contributions on behalf of the Claimants.
Legal principles established
#- An employee does not become a casual employee merely because employment is not evidenced by a written contract
- An employer asserting desertion must prove that due notification was issued to the deserting employee
- Where an employer fails to document terms of employment, it is left to the Court to interpret those terms
Court orders
#- 1.Award to 1st Claimant Edith Mutuku totalling Kshs.117,277.00 (4 months' salary compensation, notice pay, house allowance, leave pay, prorata leave, service pay, unpaid salaries)
- 2.Award to 2nd Claimant Mary Wavinya totalling Kshs.102,667.00 (4 months' salary compensation, notice pay, house allowance, leave pay, prorata leave, service pay, unpaid salary arrears)
- 3.Award amounts to attract interest at court rates from the date of the award until payment in full
- 4.Respondents to meet the costs of the case
- 5.Counterclaims for notice pay dismissed
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over claims of unfair termination and terminal dues
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Edith Mutuku & another v Karesh Hardware Construction Co Ltd & another [2015] KEELRC 13 (KLR)", Case Analysis (2015). Cause No 2339 of 2012 (Consolidated with Cause No 2340 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/13/eng@2015-11-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.