Jowasi Ambundo Kasina & 5 others v Kenafric Industries Limited [2015] KEELRC 1050 (KLR)

The court noted that the memorandum of claim filed in April 2010 was supported by the Verifying Affidavit of the 1st claimant, Jowasi Ambundo Kasina, made at paragraph (1) on his own behalf and on behalf of the other claimants. The respondent's submission that the claim by the 2nd to 6th claimants lacked verifying affidavits was held to lack basis, and the court proceeded to assess the merits of the case.

The last termination was on 2nd November 2001, when the law in force was the Employment Act Cap 226, the Employment Act 2007 having commenced only on 2nd June 2008. Although the suit was transferred from the lower court and extension of time granted by consent in 2011, transfer does not change the applicable law or the date the cause of action arose. Claims under the Employment Act, 2007, including reliance on section 37 converting casual employment, were therefore a misconception.

The respondent's evidence of piece work contracts (Appendix 1 to the defence) was not challenged or controverted by the claimants. Under sections 2 and 5(1) of the Employment Act Cap 226, piece work is paid by the amount of work performed irrespective of time occupied, and such contracts end each day with all-inclusive payments. Claims for overtime, house allowance, leave, underpayment and service pay therefore had no legal basis under the applicable repealed law.

Compensation for loss of employment contemplates a full-time employee removed from employment, and on a piece work contract applies only for time not covered by the piece work; the claimant must demonstrate the specific payment made or not made for work done. A general claim for 12 months' pay was far-fetched. As to notice pay, the respondent admitted these dues, which were deposited with the Minister for Labour after conciliation, with notification given to the claimants, who were directed to collect the monies.