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ELRCPartially AllowedClaim No. 31 of 2013· [2016] KEELRC 869 (KLR)

Peter Marani Aganda & 2 others v Jalaram Wholesalers Company [2016] KEELRC 869 (KLR)

Employment & Labour Relations Court
26 May 2016
2,021 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Three Kenyan workers labelled 'casuals' won terminal benefits after a court converted their contracts under the Employment Act.

What this practically means

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Executive summary

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Three claimants sued Jalaram Wholesalers Company alleging wrongful termination of employment and seeking terminal dues. The Respondent admitted employing them on casual basis paid daily but denied the claims. The court, framed three issues: whether the 3rd Claimant's suit was abandoned for failure to testify, whether the Claimants were casuals, and entitlement to remedies. On the first issue, the court held the 3rd Claimant's suit was not abandoned because the Respondent admitted he was its employee. On the second, the court applied section 37(1) of the Employment Act: where a casual works the equivalent of not less than one month, the contract is deemed converted to a monthly contract. The Respondent admitted employing the Claimants as casuals from 2012 to 2013 but kept no records of days worked, contrary to sections 10 and 74 of the Employment Act; under section 10(7), the burden of proving the terms of employment then fell on the employer. The muster roll produced did not contain the Claimants' names and had no probative value, and the Respondent did not deny their specific averments. The court found the Claimants worked for the periods pleaded and their contracts converted to term contracts. On remedies, each Claimant received pay in lieu of notice, annual leave, service pay and rest days: Kshs.118,288 for the 1st Claimant and Kshs.38,050 each for the 2nd and 3rd Claimants. Overtime claims were dismissed for want of proof. The court declined to invoke section 26(2) of the Employment Act and section 47(1) of the Labour Institutions Act to uplift the awards to statutory minimum rates due to evidential uncertainty on dates. Costs were awarded to the Claimants.

Key legal issues

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01

Whether the 3rd Claimant's suit should be deemed abandoned for failure to testify

Holding

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.

Reasoning

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.

p. 2
02

Whether the Claimants were casual employees

Holding

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.

Reasoning

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.

p. 3
03

Whether the Claimants are entitled to the remedies sought

Holding

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.

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 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. 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. 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. 4.The Claimants shall have costs of the suit

Authorities

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Legislation

  • Employment ActSection 2
  • Employment ActSection 37(1), (2) and (3)
  • Employment ActSection 10 and Section 10(7)
  • Employment ActSection 74
  • Employment ActSection 35(1)(c) and 35(5)
  • Employment ActSection 26(1) and 26(2)
  • Labour Institutions ActSection 47(1)
Jurisdiction invoked
Employment and labour relations jurisdiction of the Employment & Labour Relations Court

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.