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ELRCPartially AllowedCause No. 5(N) of 2010· [2016] KEELRC 64 (KLR)

Munir Abubakar Masoud v Banking Insurance and Finance Union(K) [2016] KEELRC 64 (KLR)

Employment and Labour Relations Court
14 October 2016
MOMaureen OnyangoMNMathews N. Nduma
5,552 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court awarded a union worker only his conceded salary because he could not prove unfair termination, discrimination, or most claimed benefits.

What this practically means

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Executive summary

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The Claimant, a former Kenya Revenue Authority employee, sued the Banking Insurance and Finance Union (K) claiming he had been employed by the union from September 2003 and was sent on backdated unpaid leave in January 2006, denied re-entry after the 2006 union elections, and denied salaries, house allowance and leave benefits. He sought declarations, penalties against the union under the repealed and current Employment Acts, and payment of terminal benefits quantified at over Shs.1 million. The Respondent denied an employment relationship, asserting the Claimant was engaged only on a recruitment assignment, and challenged the court's jurisdiction, arguing the claim was a complaint, statute barred under section 90 of the Employment Act, 2007, and partly criminal in nature. The court framed five issues and limited itself to prayers within its jurisdiction under section 12 of the Employment and Labour Relations Act: unfair termination, discrimination and terminal benefits. It held section 90's three-year limitation did not apply retrospectively to a January 2006 cause of action; the six-year period under the Limitation of Actions Act applied, so the claim was within time. Although the original engagement letter was a contract for services for recruitment, the court presumed the Claimant was absorbed into employment after he was allowed to perform employees' activities. However, he failed to prove unfair termination or discrimination, and most monetary heads failed for want of contractual or legal basis. Only the conceded salary of Shs.165,987 for January to March 2006 was awarded, and each party was ordered to bear its own costs.

Key legal issues

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01

Jurisdiction over the complaint as filed

Holding

The court limited itself to prayers (d), (e), (f), (i), (j), (k) and (l), covering unfair termination, discrimination and terminal benefits, ignoring prayers outside its jurisdiction.

Reasoning

The claim's prayers ranged from labour complaints for labour officers to matters for the Registrar of Trade Unions and criminal charges. The court held it could ignore what was outside its purview under section 12 of the Employment and Labour Relations Act and determine only matters within jurisdiction, summarising the surviving heads as unfair termination, discrimination and terminal benefits.

p. 6
02

Whether the claim was statute barred

Holding

Section 90 of the Employment Act, 2007 did not apply retrospectively; the six-year limitation under the Limitation of Actions Act applied, and the claim filed in January 2010 was within time.

Reasoning

Section 90's three-year limitation came into force on 2nd June 2008, after the Complainant left employment on 20th January 2006. The applicable limitation was section 4(1)(a) of the Limitation of Actions Act (six years). The claim filed on 6th January 2010 was therefore within time and not time barred.

p. 7
03

Employment status: contract of service or contract for services

Holding

The initial engagement was a contract for services, but the Complainant was later presumed absorbed into employment after being allowed to perform activities reserved for employees and officials.

Reasoning

The engagement letter showed a specific recruitment task at specific remuneration, hence a contract for services. However, minutes of conciliation meetings, court corams and the Respondent's witnesses confirmed the Complainant performed other union activities reserved for employees, raising a presumption of absorption into employment after his move to Nairobi.

p. 8
04

Unfair termination and discrimination

Holding

The Complainant failed to prove unfair termination or discrimination.

Reasoning

The Complainant did not prove the absence of a provision for unpaid leave before elections, did not name any comparator employee contesting elections who was not sent on unpaid leave, did not prove he reported back and was turned away, and his conduct (registering HEWA and suing to stop the elections) was inconsistent with any intention to return to work.

p. 8
05

Remedies and terminal benefits

Holding

Only the conceded salary of Shs.165,987.00 for January to March 2006 was awarded; all other heads of claim were dismissed for want of proof of legal or contractual basis.

Reasoning

Transfer and disturbance allowances had no legal or contractual basis; leave claims lacked proof of an agreement for 45 days per year; lawyers' fees refund could not be court-ordered; house allowance was not proved since the Complainant was not on statutory minimum wage and did not prove his salary excluded housing. The Respondent conceded three months' salary following the Provincial Labour Officer's recommendation.

p. 10

Legal principles established

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  • The limitation period in section 90 of the Employment Act, 2007, having come into force on 2nd June 2008, does not apply to causes of action arising before that date; the six-year period under the Limitation of Actions Act applies instead.
  • A person engaged for a specific task at a specific remuneration is on a contract for services, not a contract of service.
  • Where a person engaged for one purpose is later allowed to perform activities reserved for employees or officials, there is a presumption that he was absorbed into employment.
  • A court may, despite defective pleadings, limit itself to claims within its jurisdiction under section 12 of the Employment and Labour Relations Act and ignore extraneous prayers.

Court orders

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  1. 1.Payment to the Complainant of Shs.165,987.00 as salary for January to March 2006, conceded by the Respondent
  2. 2.Dismissal of the claim save for the conceded salary claim
  3. 3.Each party to bear its own costs

Authorities

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Legislation

  • Employment Act, Cap 226 (repealed)sections 7, 38, 48, 52
  • Employment Act, 2007sections 5(2), 5(3), 5(5), 28(1), 31(1), 35, 36, 46(d) and (e), 46(h), 74(1), 74(2), 88(1), 90
  • Limitation of Actions Actsection 4(1)(a)
  • Penal Codesections 121(1)(g), 395
  • Trade Unions Actsection 38(7)
  • Employment and Labour Relations Actsection 12
  • Labour Institutions Act 2007
  • Labour Relations Act 2007
  • Trade Disputes Act Cap 234 (repealed)
  • Regulation of Wages (General) Order

Cases cited (1)

  • Peter Wangai Kiama v Lawrence Gelmon & 2 others
    Industrial Court Cause No.1170 of 2010
Jurisdiction invoked
Section 12 of the Employment and Labour Relations Act

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, "Munir Abubakar Masoud v Banking Insurance and Finance Union(K) [2016] KEELRC 64 (KLR)", Case Analysis (2016). Cause No. 5(N) of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/64/eng@2016-10-14

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