Rashid Msena v Arkson Quarries [2016] KEELRC 788 (KLR)
The bottom line
#A Kenyan court ruled that a worker employed continuously beyond one month is not casual, and employers must prove contract terms when no written contract exists.
What this practically means
#Executive summary
#Key legal issues
#Date and nature of employment
Claimant was employed in June 2012 and worked 17 months as a regular employee, not a casual
The employer bore the burden under Section 10(7) of the Employment Act to disprove the claimant's asserted start date, having issued no written contract. The employer's claim that operations began in June 2013 was unsupported by documents or independent witnesses. A worker engaged continuously beyond one month cannot be casual, and the work was central to the business.
Fairness of termination
Termination was unfair in substance and procedure
Allegations of rudeness and incitement came only from a supervisor who never testified and were never investigated or established. The payment voucher showed termination was at the employer's instance. No notice to show cause or hearing was given, contrary to Sections 41, 43 and 45 of the Employment Act.
Separate machine repair contract
Claim of Kshs. 100,000 for machine repair failed
The claimant's duties as Fabricator included machine repair and he received wages for it. His alleged helpers were themselves the respondent's regular workers. The task fit within his general job description, so he did not prove a distinct extraneous contract.
Assessment of compensation
Monthly salary adopted at Kshs. 15,000 based on wage schedules; 3 months' compensation awarded
Wage schedules showed the claimant worked about 15 days a month, making the claimed Kshs. 30,000 an incorrect base rate. In the exercise of discretion and for fairness, the Court adopted 15 days' salary as the monthly salary and awarded 3 months' compensation, notice pay, service pay and salary for days worked.
Legal principles established
#- Where an employer fails to produce a written contract, the burden of proving or disproving an alleged term of employment rests on the employer
- An employee who has worked continuously for more than one month cannot be treated as a casual employee under Section 37 of the Employment Act
- Work central to the employer's business demands regular engagement and does not constitute transient casual labour
- Unproved allegations of misconduct relayed by a supervisor who is not called as a witness cannot amount to valid reasons for termination
- Termination without notice to show cause and a hearing is unfair both in substance and procedure
Court orders
#- 1.Declaration that termination was unfair
- 2.Respondent to pay Claimant 3 months' salary in compensation for unfair termination at Kshs. 45,000
- 3.Respondent to pay 1 month salary in notice pay at Kshs. 15,000
- 4.Respondent to pay service pay at Kshs. 7,500
- 5.Respondent to pay Kshs. 6,000 as salary for days worked in November 2013
- 6.Respondent to release Claimant's Certificate of Service forthwith
- 7.Each party to meet their own costs of the litigation
- 8.Award to be satisfied in full within 30 days of delivery
- Jurisdiction invoked
- Industrial Court (Procedure) Rules 2010, Rule 27(1)(a); jurisdiction over employment and labour relations disputes
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rashid Msena v Arkson Quarries [2016] KEELRC 788 (KLR)", Case Analysis (2016). Cause Number 435 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/788/eng@2016-07-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.