Peter Marani Aganda & 2 others v Jalaram Wholesalers Company [2016] KEELRC 869 (KLR)
The bottom line
#Three Kenyan workers labelled 'casuals' won terminal benefits after a court converted their contracts under the Employment Act.
What this practically means
#Executive summary
#Key legal issues
#Whether the 3rd Claimant's suit should be deemed abandoned for failure to testify
The suit was not abandoned; the Respondent admitted in its defence and through RW1 that the 3rd Claimant was an employee, so his failure to testify did not defeat the claim.
There was no dispute that all three Claimants were employees whose services were terminated. The Respondent admitted in both the defence and the statement of RW1 that the 3rd Claimant was employed as a loader. In light of that admission, the Respondent's contention that the 3rd Claimant's case was unproved because he did not testify could not stand.
Whether the Claimants were casual employees
Although engaged as casuals, their contracts were converted to term contracts by operation of section 37(1) of the Employment Act, and they worked for the periods stated in their claims.
Section 2 defines a casual employee as one paid at the end of each day and not engaged for longer than twenty-four hours at a time. Section 37(1) converts the contract where a casual works the equivalent of not less than one month. The Respondent, having admitted casual employment but claimed it was not continuous, bore the burden of proving discontinuity through records under sections 10 and 74. It kept no such records; the muster roll did not contain the Claimants' names and had no probative value, and the Respondent did not deny the Claimants' specific averments.
Whether the Claimants are entitled to the remedies sought
Each Claimant was entitled to one month's pay in lieu of notice, annual leave, service pay and rest days, but the overtime claims were dismissed for want of proof.
Under sections 37(2) and (3), converted employees are entitled to terms they would have enjoyed had they not been casuals, including paid rest days, annual leave, service pay under section 35(5) and notice pay. The court adopted the Claimants' computations for these heads. However, the specific claim for overtime required proof of the hours worked, which none of the Claimants discharged, so those claims were dismissed.
Legal principles established
#- Where a casual employee works for a period amounting to not less than one month, the contract is deemed converted to a monthly wage contract under section 37(1) of the Employment Act.
- Where an employer fails to keep prescribed employment records, the burden of proving or disproving an alleged term of employment falls on the employer.
- An employee whose contract is converted under section 37(1) and who works continuously for two months or more is entitled to the terms and conditions of service he would have enjoyed had he not initially been employed as a casual employee.
Court orders
#- 1.Award to 1st Claimant Peter Marani Aganda: pay in lieu of notice Kshs.13,610, annual leave Kshs.31,145, service pay Kshs.11,835, rest days Kshs.61,698, total Kshs.118,288
- 2.Award to 2nd Claimant Rodney Eshiwani Onyango: pay in lieu of notice Kshs.8,049, annual leave Kshs.19,503, service pay Kshs.10,498, total Kshs.38,050
- 3.Award to 3rd Claimant Silas Wafula: pay in lieu of notice Kshs.8,049, annual leave Kshs.19,503, service pay Kshs.10,498, total Kshs.38,050
- 4.The Claimants shall have costs of the suit
- Jurisdiction invoked
- Employment and labour relations jurisdiction of the Employment & Labour Relations Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Marani Aganda & 2 others v Jalaram Wholesalers Company [2016] KEELRC 869 (KLR)", Case Analysis (2016). Claim No. 31 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/869/eng@2016-05-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.