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ELRCPartially AllowedCause No. 1297 of 2012· [2015] KEELRC 63 (KLR)

Joseph Musyoka Munyao & 5 others v SDV Transami Kenya Limited [2015] KEELRC 63 (KLR)

Employment and Labour Relations Court
14 December 2015
HWHellen S. Wasilwa
1,891 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled that long-serving weekly-paid workers are not casual employees and must receive severance pay for all their years of service.

What this practically means

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Executive summary

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Six claimants sued SDV Transami Kenya Limited seeking dues accrued during their employment after being declared redundant on 31 October 2010. They claimed to have worked between 9 and 16 years each, working nine hours daily without off days, without housing or payment in lieu, without NSSF remittances, and that on redundancy they were underpaid gratuity covering only two years. The Respondent raised a preliminary objection that the claims for periods prior to April and October 2007 were time barred, having been filed more than three years after the cause of action arose; that objection, heard by Lady Justice Ndolo, was found not to be a pure point of law. Justice Wasilwa found that the Claimants worked for the Respondent from as far back as 1995 and that no appointment letters were issued in 2007, so no clear distinction existed between pre- and post-2007 service. The cause of action therefore arose in 2010 when they were declared redundant and paid for only three years of service. The court further held that the Claimants were not casual employees as statutorily defined, being engaged for long periods and paid weekly, and were entitled to severance pay under Section 16A of the repealed Employment Act Cap 226. The court awarded each Claimant 15 days' pay per year served, with interest at court rates from the date of judgment, and declined the other heads of claim for lack of evidentiary basis. The Respondent was ordered to pay the costs of the suit.

Key legal issues

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01

Limitation - when the cause of action arose for pre-2007 redundancy dues

Holding

The cause of action arose in 2010 upon declaration of redundancy, not in 2007, so the claim was not time barred

Reasoning

The court found no clear distinction between service before and after 2007 because no appointment letters were issued in 2007 to change the position. The employer paid only three years' service in 2010 without referring to prior service, and still held the records which the law obliged it to keep for up to three years. The claim therefore accrued on redundancy.

p. 3
02

Status of the Claimants - casual or permanent employees

Holding

The Claimants were not casual employees as defined in Cap 226 since they worked for longer periods than 24 hours at a time and were paid weekly; they were entitled to severance pay

Reasoning

The statutory definition of a casual employee covers only one engaged for not longer than twenty-four hours at a time and paid at the end of each day. The Claimants worked continuously for years and were paid weekly as evidenced by payment voucher summaries. Their status as 'permanent casuals' did not defeat their statutory entitlement to severance pay under the repealed Act.

p. 4
03

Quantum of severance pay and length of pre-2007 service

Holding

Severance pay awarded at 15 days pay for each completed year of service, with years worked estimated where documents were inadequate

Reasoning

Both parties failed to prove the exact periods worked, but the Respondent, as custodian of the records, should have produced documents rebutting the Claimants' stated periods. The court therefore adopted the Claimants' asserted years of service in computing severance pay at the statutory rate of not less than 15 days pay per completed year.

p. 3

Legal principles established

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  • Employees engaged for longer periods than twenty-four hours at a time and paid weekly are not casual employees within the meaning of the Employment Act and are entitled to severance pay on redundancy
  • Where a redundancy declaration fails to account for service prior to a purported change in employment status, the cause of action arises on declaration of redundancy, not on the earlier change of status

Court orders

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  1. 1.Each Claimant awarded 15 days severance pay for each year worked: Munyao Kshs.80,899; Muindi Kshs.47,550; Mwangi Kshs.47,550; Mwereria Kshs.42,795; Muchui Kshs.33,285; Musunza Kshs.28,530
  2. 2.Award to attract interest at Court rates from the date of Judgment
  3. 3.Respondent to pay costs of the suit

Authorities

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Legislation

  • Employment Act (Cap 226, now repealed)Section 16A
  • Employment Act (Cap 226, now repealed)Section 2 (definition of casual employee)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and related labour statutes (claim for redundancy dues and employment benefits)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Joseph Musyoka Munyao & 5 others v SDV Transami Kenya Limited [2015] KEELRC 63 (KLR)", Case Analysis (2015). Cause No. 1297 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/63/eng@2015-12-14

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