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ELRCPartially AllowedNot stated in judgment (cause filed 29 February 2012)· [2015] KEELRC 607 (KLR)

Sebastian Gwanda Ogot & 51 others v Kenya Power & Lighting Company Limited [2015] KEELRC 607 (KLR)

Employment and Labour Relations Court
31 July 2015
NMNzioki wa Makau
2,311 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 Kenya Power's daily-rated workers were true employees, entitling each to one month's notice pay and three months' severance after redundancy.

What this practically means

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Executive summary

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Fifty-two former workers of Kenya Power & Lighting Company Limited sued for one month's notice pay, accumulated leave, house allowance, service gratuity and damages for wrongful/unfair termination following the cessation of their services in 2010 and 2011. The Respondent's defence was that the Claimants were casuals employed on daily rates for bush clearing and line patrol duties in its energy transmission division; that mechanization and the transfer of high-voltage transmission work to KETRACO eliminated their work; and that they failed to qualify for or apply for internal contract vacancies. The named claimant testified that the men were regular day workers paid fortnightly and later monthly, given only 2-3 days' notice, and never informed which qualifications they lacked. The Respondent's Chief Human Resource Officer confirmed no appointment letters were issued and that the daily consolidated wage included house allowance. The court found the Claimants were undeniably employees and that, although engaged on daily rates, their month-end pay pattern entitled them to a longer notice period than the two to three days given. The termination was characterised as redundancy since their positions ceased to exist. Only the notice and severance heads succeeded: each of the 52 Claimants was awarded Kshs. 13,140/- as one month's notice pay plus three months' salary as severance, subject to statutory deductions, and certificates of service under Section 51 of the Employment Act. Claims for leave, house allowance and service gratuity failed for want of proof. Each party was ordered to bear its own costs.

Key legal issues

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01

Status of the Claimants - casual or regular employees

Holding

The Claimants were undeniably employees; although paid daily rates, the monthly payment pattern meant the short notice given was inadequate

Reasoning

The Respondent asserted the Claimants were casuals paid daily, with fortnightly and later monthly payments for convenience. The court accepted they were employees but held that because they were usually paid at month's end, they were entitled to more than the 2-3 days' notice given. This finding grounded the award of one month's notice pay.

p. 3
02

Whether termination was redundancy

Holding

The termination amounted to redundancy because the Claimants' positions ceased to exist after mechanization and the transfer of work to KETRACO

Reasoning

The Respondent pleaded mechanization in its energy transmission division and the contracting of new transmission line construction to KETRACO, leaving no work for the casuals. The court characterised this as redundancy, which by law carries specific payments (severance) and procedural steps the Respondent failed to follow, justifying severance pay at 3 months' salary.

p. 3
03

Entitlement to leave, house allowance and service gratuity

Holding

These heads of claim failed; the daily consolidated wage was taken to include house allowance and no Claimant worked a full year to earn service pay

Reasoning

The Claimants produced no proof that their monthly pay fell below the statutory minimum or excluded house allowance. The Respondent's witness testified the daily rate was consolidated and service pay applied only to those who worked one full year, which none did. The court therefore limited recovery to notice pay and severance.

p. 3

Legal principles established

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  • Daily-rated employees who are ordinarily paid at the end of the month are entitled to a longer period of notice than one day
  • Where positions are abolished because work is no longer available, the termination amounts to redundancy, triggering the statutory redundancy payments and procedure

Court orders

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  1. 1.The Respondent to pay each Claimant one month's notice pay of Kshs. 13,140/- for each of the 52 Claimants named in Appendix SG 1 of the Claimants' bundle
  2. 2.Each Claimant to be paid a further 3 months' salary as severance pay
  3. 3.Payments to be subject to statutory deductions in terms of Section 49 of the Employment Act
  4. 4.Each Claimant to receive a certificate of service in terms of Section 51 of the Employment Act
  5. 5.Each party to bear their own costs

Authorities

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Legislation

  • Employment Act, 2007Section 35(1)
  • Employment Act, 2007Section 49
  • Employment Act, 2007Section 51

Cases cited (2)

  • Joseph Kioko Mbithi v African Auto Suppliers Limited
    [2014] eKLR
  • Danish Jalang'o & Another v Amicabre Travel Services Limited
    Cause No. 1068 of 2012
Jurisdiction invoked
Employment and labour relations dispute heard under the Employment Act, 2007

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, "Sebastian Gwanda Ogot & 51 others v Kenya Power & Lighting Company Limited [2015] KEELRC 607 (KLR)", Case Analysis (2015). Not stated in judgment (cause filed 29 February 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/607/eng@2015-07-31

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