Mathew Njoroge Ngugi v County Government of Nyandarua & another [2016] KEELRC 230 (KLR)
The bottom line
#A Kenyan court ruled a watchman was not a casual worker but a term-contract employee, dismissing his multi-million shilling claim against Nyandarua County.
What this practically means
#Executive summary
#Key legal issues
#Competency of the Cause (verifying affidavit and instructions to advocate)
The Cause was competent: the Claimant proved he instructed the advocate and swore the verifying affidavit; his earlier disowning letter and affidavit were made under pressure on a promise of permanent employment
The Claimant gave sworn testimony that he visited his advocate and gave instructions and that he signed the verifying affidavit. He explained the disowning letter and affidavit as executed under pressure with a promise of permanent employment. The Respondents did not call the Chairman of the 2nd Respondent to contradict this, so the court accepted the Claimant's account.
Absorption of casual labourers from defunct local authorities / continuity of service
No proof of a statutory framework deeming the Claimant a public officer transferred from the defunct County Council of Nyandarua; he was on a distinct and separate contract with the Respondents
Section 138 of the County Governments Act deems public officers appointed by the Public Service Commission as county public officers, but the Claimant did not prove PSC employment before devolution, nor did he identify any other transfer framework. Continuity of service was therefore not established and liability for the County Council era was rejected.
Whether the Claimant was a casual employee
He was not a casual employee; on the contracts produced he was a monthly term (3-month renewable) contract employee by dint of section 37 of the Employment Act, 2007
The Claimant joined in 2010 on a monthly renewable contract, and the 2014 contracts provided for 3-month contracts on monthly wages. Since he was paid monthly and the contracts stipulated duration, the statutory definition of casual employment in section 2 and the deeming provision in section 37 pointed to a term contract, not casual employment.
Limitation and unpaid salary arrears/house allowance
Limitation does not arise because the last contract ran from 1 September 2014 and the Cause was filed on 18 December 2014; but the claim for arrears failed for want of evidence of underpayment
Underpayment of wages is both a criminal offence and a continuing injury, so limitation is measured from 12 months after the underpayments ceased. The claim was filed within that window. On the merits, the Claimant failed to disclose his earnings under the 2012 and 2013 Legal Notices, and the 2014 muster rolls showed pay of Kshs 7,370/- above the applicable prescribed minimum of Kshs 6,000/- gross.
Legal principles established
#- Where a casual employee serves for continuous working days amounting in the aggregate to more than one month and the work cannot be completed in less than 3 months, the employment is deemed a monthly term contract under section 37 of the Employment Act, 2007
- A worker paid monthly under contracts of a defined duration, rather than at the end of each day, is not a casual employee within section 2 of the Employment Act, 2007
- Underpayment of wages is a continuing injury, so limitation runs from 12 months after the underpayments ceased
Court orders
#- 1.The Cause is dismissed with no order as to costs
- 2.The judgment applies in the causes referred to in paragraph 2 (Nakuru Causes Nos 655, 668, 678, 692, 734, 736, 722 and 702 of 2014)
- Jurisdiction invoked
- Original employment and labour relations jurisdiction of the Employment and Labour Relations Court (test-suit direction issued by the Court on 5 April 2016)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mathew Njoroge Ngugi v County Government of Nyandarua & another [2016] KEELRC 230 (KLR)", Case Analysis (2016). Test cause for Nakuru Employment Causes (with Nakuru Causes Nos 655 of 2014; 668 of 2014; 678 of 2014; 692 of 2014; 734 of 2014; 736 of 2014; 722 of 2014 and 702 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/230/eng@2016-12-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.