Nyamawi Gambo v Mombasa Maize Millers Limited & Another [2016] KEELRC 507 (KLR)
The bottom line
#A worker hired as a casual in 1996 was legally a regular employee, and the court awarded him compensation because his employer could not prove why he was fired.
What this practically means
#Executive summary
#Key legal issues
#Status of the Claimant - casual or regular employee
The Claimant was a regular employee by operation of Section 37 of the Employment Act, having worked continuously from 1996 and holding a job identification card
The Claimant worked in continuity from 1996, initially for the 1st Respondent as a Casual Loader. He held a job identification card issued only to regular employees. The Court held that a contract of such duration could not in 2015 be treated as a casual contract, and the Claimant was entitled to the full protections and guarantees applicable to regular employees under the Employment Act 2007.
Fairness of termination
Termination was unfair; the 2nd Respondent neither proved a valid reason nor observed fair procedure under Sections 41, 43 and 45
The 2nd Respondent alleged desertion but produced no attendance registers or employment records, and made no attempt to contact the Claimant or commence disciplinary proceedings. The Claimant's evidence that he was dismissed after demanding better pay stood unrebutted. Sections 41 and 45 of the Employment Act were ignored, and the employer bore the entire burden of justifying termination under Section 47.
Apportionment of liability between principal employer and labour outsourcing firm
The 1st Respondent was liable for the pre-2014 period and the 2nd Respondent for the post-2014 period, when it took over management of the labour force
The Claimant was initially employed solely by the 1st Respondent from 1996. The labour management agreement creating the triangular relationship came into being in early 2014, and termination occurred in May 2015 when the 2nd Respondent was in active management. Liability for compensation and notice pay, which arose on termination, fell on the 2nd Respondent, while accrued service pay and leave for the first 17 years fell on the 1st Respondent.
Entitlement to service pay and annual leave pay
Service pay was granted under Sections 35 and 36 as the Claimant was not subscribed to N.S.S.F; annual leave pay granted at the statutory minimum of 21 days per year for 18 years
There was no evidence the Claimant was subscribed to N.S.S.F or any other social security plan, entitling him to service pay for 18 completed years. The Claimant did not prove entitlement to 22 days' leave per year, but the Court, in the absence of the Respondents' employment records, had no reason to disbelieve that he was denied leave, and granted the statutory minimum of 21 days per year.
Legal principles established
#- An employee engaged as a casual who works continuously over many years is deemed a regular employee entitled to full protections of the Employment Act
- The burden of justifying termination - both valid reason and fair procedure - rests on the employer, not the employee
- An employer alleging desertion must avail attendance records and attempt to reach the employee before treating the contract as terminated
- In a labour outsourcing arrangement, the outsourced employer's liability attaches only from the date it took over management of the labour force
Court orders
#- 1.Declaration that termination was unfair
- 2.2nd Respondent to pay 6 months' salary in compensation for unfair termination at Kshs. 97,500
- 3.2nd Respondent to pay notice pay at Kshs. 16,250
- 4.Respondents to pay service pay totaling Kshs. 168,750, the 1st Respondent paying Kshs. 159,375 and the 2nd Respondent Kshs. 9,375
- 5.Respondents to pay annual leave pay amounting to Kshs. 236,250, Kshs. 223,125 by the 1st Respondent and Kshs. 13,125 by the 2nd Respondent
- 6.Respondents to release the Claimant's Certificates of Service, the 1st Respondent's covering 1996-2014 and the 2nd Respondent's covering 2014-2015
- 7.Costs of the Claim granted to the Claimant, to be met solely by the 1st Respondent
- 8.The Award to be satisfied in full within 30 days of delivery
- Jurisdiction invoked
- Article 162(2) of the Constitution read with Section 12 of the Employment and Labour Relations Court Act (jurisdiction over employment and labour relations disputes); Industrial Court (Procedure) Rules 2010, Rule 27(1)(a)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Chandoek v Mediheal Group of Hospitals (Cause 108 of 2018) [2023] KEELRC 2446 (KLR)[2023] KEELRC 2446 (KLR)12 Oct 2023
- Henry Simiyu Wanyonyi v Unga Holdings Limited & another [2021] KEELRC 333 (KLR)[2021] KEELRC 333 (KLR)23 Nov 2021
Cite this brief
#Cite this brief
Caselaw, "Nyamawi Gambo v Mombasa Maize Millers Limited & Another [2016] KEELRC 507 (KLR)", Case Analysis (2016). Cause Number 455 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/507/eng@2016-07-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.