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ELRCAllowedMilimani Resident Magistrate's Court Joint Plaint dated 13th July 2009, transferred and filed as Memorandum of Claim on 2nd June 2011· [2015] KEELRC 1624 (KLR)

Samwel Okinda Aponga & another v Match Master Limited [2015] KEELRC 1624 (KLR)

Industrial Court (Employment and Labour Relations Court)
21 August 2015
1,808 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 'casual' workers automatically become permanent employees entitled to notice pay, leave and service pay.

What this practically means

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Executive summary

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Two Machine Operators sued their former employer, Match Masters Ltd (formerly Crown Match), for terminal benefits after being sent away in January 2009 for refusing to sign probationary or three-month contracts. They claimed notice pay, 21 days annual leave per year worked, severance/service pay and, for the 2nd Claimant, underpayment. The Respondent denied the claims, asserting the Claimants were casuals who declined offers of permanent employment and absconded. The court framed two issues: whether the Claimants were casuals, and if not, their entitlement to relief. Relying on the Employment Act definition of a casual employee and on section 37(1), the court held that continuous service over years converted their status to monthly contracts under section 35(1)(c). The Claimants were therefore entitled to one month's pay in lieu of notice, 21 days annual leave per year of service, and service pay at 15 days' salary per year worked, subject to the section 35(6) NSSF exclusion: the 1st Claimant (never registered) received service pay for 10 years, and the 2nd Claimant (registered in 2004) gratuity for four years. The 2nd Claimant's underpayment claim was allowed as the Respondent offered no defence. Awards totalled Kshs.100,230 for the 1st Claimant and Kshs.104,359 for the 2nd, with interest at court rates from filing and costs to the Claimants. Judgment delivered at Nairobi on 21st August 2015 by Mathews Nderi Nduma, Principal Judge.

Key legal issues

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01

Whether the Claimants were casual workers

Holding

The Claimants were not casuals; having worked continuously for years and paid weekly, their employment was converted to monthly contracts under section 37(1) of the Employment Act.

Reasoning

The court applied the statutory definition of a casual employee as one paid at the end of each day and engaged for not more than 24 hours at a time. Both Claimants' evidence and RW1's testimony showed continuous work over many years at daily rates but weekly payment. Section 37(1) deems such casuals to hold monthly contracts once service reaches one month's aggregate, bringing the contract within section 35(1)(c).

p. 3
02

Entitlement to terminal benefits: notice pay, leave, service pay and underpayment

Holding

Upon conversion to monthly status, the Claimants were entitled to one month's notice, 21 days annual leave per year, and service pay at 15 days' salary per year worked, save for periods of NSSF registration; the 2nd Claimant's underpayment claim was allowed unchallenged.

Reasoning

Conversion under section 37(1) imports the Basic Minimum Conditions of Employment under Part V, including section 28(1) annual leave of 21 days. Under section 35(5) service pay accrues on termination by notice, but section 35(6) excludes NSSF members. The 1st Claimant was never registered with NSSF; the 2nd Claimant only from 2004, hence gratuity for four years. The Respondent offered no defence to leave and underpayment claims.

p. 4

Legal principles established

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  • A casual employee who works continuously for the equivalent of one month or more is deemed to have a monthly contract and acquires the statutory minimum benefits under the Employment Act.
  • Employees deemed to be on monthly contracts under section 37(1) are entitled to one month's notice and service pay under section 35(5), unless registered with NSSF.

Court orders

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  1. 1.Award to the 1st Claimant: one month salary in lieu of notice Ksh.7,710.00; 21 days annual leave for 10 years Ksh.53,970.00; 15 days service pay for 10 completed years Kshs.38,550.00; total Kshs.100,230.00
  2. 2.Award to the 2nd Claimant: one month salary in lieu of notice Ksh.7,710.00; 21 days salary in lieu of annual leave for 7 years and 11 months Ksh.42,726.00; underpayment for 2000 to 2008 Kshs.23,983.00; service gratuity at 15 days salary for 4 years Ksh.15,420.00; total Ksh.104,359.00
  3. 3.Awards payable with interest at court rates from date of filing the suit till payment in full
  4. 4.Respondent to pay the costs of the suit

Authorities

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Legislation

  • Employment ActPart 2 (definition of casual employee)
  • Employment ActSection 37(1)
  • Employment ActSection 35(1)(c)
  • Employment ActSection 35(5)
  • Employment ActSection 35(6)
  • Employment ActSection 28(1)
  • Employment ActPart V (Basic Minimum Conditions of Employment)
Jurisdiction invoked
Transfer from Milimani Resident Magistrate's Court under the Industrial Court's employment jurisdiction; 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, "Samwel Okinda Aponga & another v Match Master Limited [2015] KEELRC 1624 (KLR)", Case Analysis (2015). Milimani Resident Magistrate's Court Joint Plaint dated 13th July 2009, transferred and filed as Memorandum of Claim on 2nd June 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1624/eng@2015-08-21

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