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ELRCAllowedCause No. 385 of 2013· [2016] KEELRC 1615 (KLR)

Japheth Musee Kitheka v Rhino Box Manufacturers Limited [2016] KEELRC 1615 (KLR)

Employment and Labour Relations Court
16 February 2016
HWHellen S. Wasilwa
1,174 words in judgment
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The bottom line

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A Kenyan court ruled that casual workers employed beyond three months become monthly employees entitled to full protections against unfair dismissal.

What this practically means

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Executive summary

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The Claimant, Japheth Musee Kitheka, sued Rhino Box Manufacturers Limited alleging unfair termination on 31 August 2012 and non-payment of terminal dues. He claimed he was employed on 15 March 2011 as a Machine Operator earning Kshs. 14,000 per month, and that the cashier told him his services were no longer required, possibly because he had requested house allowance. He denied being a casual employee and denied signing the contract and petty cash vouchers produced by the Respondent. The Respondent denied terminating him, asserting he was engaged as a casual in mid-2011 at Kshs. 500 per day, placed on a three-month contract from 1 April 2012 which was not renewed due to indiscipline (smoking on factory premises), and retained as a casual thereafter, with all entitlements paid. The court framed two issues: the employment terms and separation, and the prayers payable. It found the purported contract invalid because it bore no signature of either party, and disregarded it. Applying Section 37(1) of the Employment Act, the court held that a casual working over three months continuously is converted to a monthly employee, so Section 41 procedure applied. Under Section 10(7), the burden of proving terms lay on the employer, who failed to discharge it. The dismissal was held unfair and unjustified under Section 45(1) and (2). The court awarded notice pay, leave pay, gratuity and eight months' salary as damages, totalling Kshs. 147,000, plus a Certificate of Service, costs and interest.

Key legal issues

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01

Employment status and terms of engagement

Holding

The Claimant, having worked continuously for over three months, ceased to be a casual and was deemed a monthly employee; the unsigned contract produced by the Respondent was disregarded

Reasoning

The contract produced by the Respondent bore neither the Claimant's signature nor that of the Respondent, and the petty cash vouchers' signatures were unverified. Under Section 37(1) of the Employment Act, a casual employee working over three months continuously is converted to a monthly-paid employee, so Section 41 procedure applied to any termination.

p. 2
02

Whether the dismissal was unfair and unjustified

Holding

The dismissal was unfair and unjustified under Section 45(1) and (2) of the Employment Act

Reasoning

The Respondent failed to produce a valid written contract and gave no indication of how the contract was terminated; due process was not followed. The employer bore the burden under Section 10(7) and failed to prove a valid reason or fair procedure.

p. 2

Legal principles established

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  • Where a casual employee works for the equivalent of not less than one month or performs work not completable within three months, the contract is deemed to be one where wages are paid monthly under Section 37(1) of the Employment Act
  • Where an employer fails to produce a written contract, the burden of proving or disproving an alleged term of employment lies on the employer under Section 10(7) of the Employment Act
  • A termination is unfair where the employer fails to prove a valid and fair reason and fair procedure under Section 45(1) and (2) of the Employment Act

Court orders

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  1. 1.One month salary in lieu of notice of Kshs. 14,000
  2. 2.One year leave pay of Kshs. 14,000
  3. 3.Gratuity for the duration of service at 15 days for each year of Kshs. 7,000
  4. 4.Eight months salary as damages for unlawful termination of Kshs. 112,000, total award Kshs. 147,000
  5. 5.The Claimant to be issued with a Certificate of Service
  6. 6.The Respondent to pay costs of the suit plus interest at court rates from the date of judgment

Authorities

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Legislation

  • Employment ActSection 37(1)
  • Employment ActSection 35(1)(c)
  • Employment ActSection 10(7)
  • Employment ActSection 41
  • Employment ActSection 45(1) and (2)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act; claim filed as a Memorandum of Claim under Cause No. 385 of 2013

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, "Japheth Musee Kitheka v Rhino Box Manufacturers Limited [2016] KEELRC 1615 (KLR)", Case Analysis (2016). Cause No. 385 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1615/eng@2016-02-16

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