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ELRCPartially AllowedCause No. 96 of 2014· [2016] KEELRC 1588 (KLR)

Paulina Thambi Munyeke & 5 others v M/S Barua Estate Limited [2016] KEELRC 1588 (KLR)

Employment and Labour Relations Court
10 February 2016
1,820 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled that long-serving casual labourers become permanent employees, awarding each of seven workers nearly half a million shillings.

What this practically means

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Executive summary

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Seven female former employees of M/S Barua Estate Limited filed a Memorandum of Claim on 29 January 2014 seeking damages for unlawful termination and payment of wage underpayments, leave, public holidays and weekly resting days accrued over long service periods ranging from over 9 years to over 35 years. They were engaged as general labourers at daily rates of Shs. 80 or 100, later Shs. 120 per day, and were all terminated on 10 October 2012, allegedly for asking for a salary increment, without notice, reasons or a hearing. They also relied on a written agreement of 27 June 2013 with the Respondent's agent, said to have been violated after a part-payment of Shs. 300,000. The Respondent was served but never entered appearance or filed a defence, and the suit proceeded ex parte. The court found the employment relationship established despite the absence of appointment letters, and, comparing the rates paid with the statutory minimum rates in the wages orders gazetted between 2003 and 2012, held the Claimants were underpaid. The court held that long service converted the Claimants from casual labourers to permanent employees. Judgment was entered for each of the seven Claimants at Shs. 491,004, comprising salary underpayments of Shs. 343,077.40, one month's notice pay of Shs. 11,379 and 12 months' compensation for unlawful termination of Shs. 136,548, totalling Shs. 3,437,028, plus costs. Claims for leave, public holidays and weekly resting days were not awarded because muster rolls were not placed before the court.

Key legal issues

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01

Underpayment of wages

Holding

The Claimants were underpaid relative to the gazetted wages order rates and are entitled to the underpayment sums claimed

Reasoning

The court compared the daily rates the Claimants were actually paid (Shs. 80 rising to Shs. 120) with the statutory minimum daily rates under the various wages orders gazetted between 2003 and 2012, which ranged from Shs. 172.70 to Shs. 379.30. On this comparison the court found the Claimants were systematically underpaid and awarded Shs. 343,077.40 per Claimant.

p. 6
02

Status of long-serving casual labourers

Holding

Claimants who served the Respondent for many years ceased to be casual labourers and were permanent employees

Reasoning

Despite the absence of appointment letters and unclear terms of engagement, the court found the employment relationship established. Because the Claimants served continuously over periods ranging from 9 to over 30 years, they ceased to be casuals and were entitled to be treated as permanent employees both for terminal dues and for protection against dismissal.

p. 6
03

Unfair termination and compensation

Holding

Each Claimant's termination was unlawful, attracting 1 month's notice pay and 12 months' salary as compensation

Reasoning

The Claimants testified they were terminated for asking for a salary increment without notice, reasons or a hearing. The Respondent never entered appearance or filed a defence and the suit proceeded ex parte. The court found for each Claimant and awarded one month's notice pay of Shs. 11,379 and 12 months' compensation of Shs. 136,548 per Claimant.

p. 6

Legal principles established

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  • A casual labourer who serves an employer for a prolonged, continuous period ceases to be a casual labourer and must be treated as a permanent employee for purposes of terminal dues and termination

Court orders

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  1. 1.Judgment entered for each of the 7 Claimants as follows: salary underpayments of Shs. 343,077.40; 1 month's salary in lieu of notice of Shs. 11,379; and 12 months' salary as compensation for unlawful termination of Shs. 136,548
  2. 2.Total award of Shs. 491,004 for each Claimant
  3. 3.Aggregate award to all Claimants of Shs. 3,437,028
  4. 4.Costs of the suit to the Claimants

Authorities

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Legislation

  • Various Wages Orders (Gazette) / Legal Notices on minimum wages 2003-2012minimum daily wage rates
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and Labour Relations Act (unfair termination and wages claims)

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, "Paulina Thambi Munyeke & 5 others v M/S Barua Estate Limited [2016] KEELRC 1588 (KLR)", Case Analysis (2016). Cause No. 96 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1588/eng@2016-02-10

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.