Bernard Nyariki Kebwage v Town Council of Kangundo [2016] KEELRC 301 (KLR)
The bottom line
#A Kenyan court ruled that calling a worker 'casual' doesn't make it so, and firing without reason or hearing costs employers.
What this practically means
#Executive summary
#Key legal issues
#Nature and status of the Claimant's employment
The Claimant was a regular employee under a term contract, not a casual employee
The Respondent contended the Claimant was a casual employee on daily wages under successive three-month contracts. The Court applied the statutory definition of a casual employee in Section 2 of the Employment Act and found from the engagement letters and payroll summaries that the Claimant was neither engaged nor paid daily. Relying on Section 37, the Court held that continuous work of at least one month converts the engagement into a term contract by operation of law.
Whether the termination was lawful and fair
The termination was unjustifiable and unfair, both substantively and procedurally
The Respondent's defence was that the contract simply lapsed, but the termination letter dated 25th June 2010 expressly terminated the Claimant's services, and no evidence of lapse of contract was adduced. No reason was advanced for the termination as Section 43 requires, and the procedural fairness requirements of Section 41, including an opportunity to be heard, were not met. Compensation was therefore warranted.
Entitlement to remedies
The Claimant was awarded six months' salary in compensation and one month's salary in lieu of notice; other heads of claim failed for want of proof
Having found the termination unfair both substantively and procedurally, the Court awarded six months' salary in compensation, taking into account the Claimant's length of service and the Respondent's conduct in the termination transaction. One month's salary in lieu of notice was also awarded. The claims for underpayment, house allowance, leave allowance, severance pay and general and punitive damages were not proved and were dismissed.
Legal principles established
#- An employee who works continuously for at least one month is deemed to be on a term contract by operation of law under Section 37 of the Employment Act
- An employer must advance a valid reason for termination as required under Section 43 of the Employment Act, 2007 and adhere to the procedural fairness requirements of Section 41
Court orders
#- 1.Judgment entered in favour of the Claimant for Kshs. 39,000 being 6 months' salary in compensation for unfair termination
- 2.Kshs. 6,500 being 1 month's salary in lieu of notice (total award Kshs. 45,500)
- 3.Judgment amount to attract interest at Court rates from the date of Judgment until payment in full
- 4.Respondent directed to issue the Claimant with a certificate of service
- 5.Respondent to pay the costs of the case
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bernard Nyariki Kebwage v Town Council of Kangundo [2016] KEELRC 301 (KLR)", Case Analysis (2016). Cause No 390 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/301/eng@2016-11-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.