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ELRCPartially AllowedCause No 317 of 2014· [2015] KEELRC 1174 (KLR)

Kennedy Kibega v Polypipes Limited (Steel Division) [2015] KEELRC 1174 (KLR)

Employment and Labour Relations Court
22 April 2015
HWHellen Wasilwa
1,055 words in judgment
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The bottom line

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A Kenyan court ruled that long-serving casual workers become permanent employees, and employers cannot sack workers without a fair hearing.

What this practically means

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Executive summary

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The Claimant sued in person for wrongful and unfair termination and unpaid terminal dues, alleging he was employed by the Respondent from 16/2/1995 at daily wages rising to a monthly equivalent of Kshs.11,882, without a written appointment letter, and was locked out from 16/1/2013 when guards were ordered to deny him entry. Two witnesses corroborated the lockout. The Respondent, through Okongo Wandago & Company Advocates, contended the Claimant was a casual paid weekly only for days worked and that the Small Mill department where he worked shut down in 2013, rendering him redundant; it relied on attendance registers showing intermittent work. The court framed three issues: employment and its terms, fairness of termination, and entitlement to relief. On employment, the court found the Respondent's records confirmed the engagement but were forged, with the Claimant's ID appearing against other workers' names. Applying section 9 of the Employment Act, 2007, it held service exceeding three months required a written contract, and converted the casual term to permanent. On termination, the court found the verbal lockout breached section 41's hearing requirements, rendering it unfair. The court awarded one month's notice pay and 18 years' service pay totalling Kshs.118,820, refused the leave claim as unproved, ordered the Respondent to pay costs and to issue a Certificate of Service. Judgment was delivered on 22nd April 2015 by Hellen Wasilwa, Judge, with no appearance for the Respondent.

Key legal issues

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01

Whether the Claimant was an employee of the Respondent and on what terms

Holding

The court found that the Claimant was an employee of the Respondent; the Respondent's attendance records were forgeries (his ID appeared against other workers' names), he was never given an appointment letter because he was treated as a casual, and the court converted his casual term to permanent employment.

Reasoning

The court relied on the Respondent's own documents confirming employment, noting the Claimant's name and ID appeared in the Respondent's records even against other workers' names, which demonstrated forgery and unreliable documentation. Applying section 9 of the Employment Act, 2007, the court held that service exceeding three months had to be in writing, and continued treatment as a casual breached the law, justifying conversion of the casual engagement to permanent employment.

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02

Whether the Claimant's termination was unfair and unjustified

Holding

The court found the termination unfair because it was effected verbally without any hearing, contrary to section 41 of the Employment Act.

Reasoning

The Claimant and two witnesses testified that he was locked out without any reason or hearing from 16/1/2013. The Respondent's assertion of redundancy was not supported by any procedure. Section 41 requires an employer to explain reasons and hear representations before termination; none of this was done, rendering the verbal termination a breach of the clear provisions of the law.

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Whether the Claimant is entitled to the prayers sought

Holding

The court awarded one month's salary in lieu of notice and service pay for 18 years, but refused the claim for leave as unproved.

Reasoning

Following findings of unfair termination, the court quantified notice pay at the Claimant's monthly wage of Kshs.11,882 and service pay under the applicable formula for 18 years of service. The leave claim failed because the Claimant did not discharge the burden of proving it. The court also exercised its power to award costs and order a Certificate of Service.

p. 3

Legal principles established

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  • An employee engaged for a period exceeding three months cannot continue to be treated as a casual; the law converts the casual term to a permanent term.
  • Verbal termination without hearing the employee in accordance with section 41 of the Employment Act is unfair and against the law.

Court orders

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  1. 1.Award of one month salary in lieu of notice of Kshs.11,882
  2. 2.Award of service pay for 18 years of Kshs.106,938 (total Kshs.118,820)
  3. 3.Respondent to pay costs of the suit
  4. 4.Respondent to issue the Claimant with a Certificate of Service

Authorities

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Legislation

  • Employment Act, 2007Section 9(1) and (2)
  • Employment Act, 2007Section 41(1) and (2)
  • Employment Act, 2007Section 42(1) and Section 44(3) and (4) (referred within section 41 text)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over claims of wrongful and unfair termination and terminal dues

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, "Kennedy Kibega v Polypipes Limited (Steel Division) [2015] KEELRC 1174 (KLR)", Case Analysis (2015). Cause No 317 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1174/eng@2015-04-22

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