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ELRCPartially AllowedCause No 162 of 2015· [2017] KEELRC 1778 (KLR)

Shanga Kitsao Mumba v Mabati Rolling Mills [2017] KEELRC 1778 (KLR)

Employment and Labour Relations Court of Kenya
17 February 2017
JRJames Rika
1,914 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that employers must prove employment terms with records, and firing a long-serving casual worker without notice or a hearing is unfair.

What this practically means

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Executive summary

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The Claimant sued the Respondent alleging unfair and unlawful termination of his employment as a Machine Operator on 20th June 2014, after four years of work at a daily wage of Kshs. 432. He sought notice pay, annual leave pay, public holiday pay, house allowance, service pay, twelve months' compensation for unfair termination, a declaration of unfair termination, a certificate of service, costs and interest. The Respondent denied a continuing employment relationship, asserting the Claimant worked on short-term contracts that expired without renewal. The dispute was determined on the record by consent. The court distinguished the authority relied on by the Respondent (which concerned proof of the existence of an employment relationship) and applied Francis Maina Kamau, holding that where the relationship is conceded, the employer bears the burden of documenting the terms of employment under Sections 10para 7 and 74para 1 of the Employment Act. Finding the Claimant had worked four years on casual terms, the court deemed him converted to regular employment under Section 37. It held the Respondent terminated the contract unfairly - without notice or hearing, and on a fresh, irrational demand for a Form 4 certificate - contrary to Sections 41, 43 and 45. The claim was partially allowed: seven months' wages in compensation (Kshs. 78,624), one month's notice pay (Kshs. 11,232) and four years' annual leave pay (Kshs. 36,288), totalling Kshs. 126,144, plus a certificate of service. Claims for public holiday pay, house allowance and service pay were rejected; each party was to bear its own costs.

Key legal issues

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01

Burden of proving terms and conditions of employment

Holding

Where the employment relationship is conceded, the Employer bears the burden of producing employment records to disprove the terms the Employee alleges; it is wrong to demand the Employee prove duration of service.

Reasoning

The court distinguished the Korir case (where existence of the employment relationship itself was in dispute) from the present case, where the relationship was conceded and only its terms were at issue. Applying Francis Maina Kamau, the court held employment records are ordinarily in the employer's custody, employees are frequently engaged orally, and it would be foolish to demand documents which may not exist. The Respondent produced no contracts, casual register, pay rolls or pay slips.

p. 3
02

Conversion of casual employment to regular terms

Holding

The Claimant, employed casually for 4 years, merited conversion into regular employment under Section 37 of the Employment Act and was entitled to the full benefits of a regular employee.

Reasoning

The court exercised its discretion under Section 37 to deem the Claimant a regular employee given his 4 years of continuous service at a daily wage. This entitled him to annual leave and other benefits unavailable to casual employees, and framed him as an employee whose contract could only be terminated fairly and lawfully under the Act.

p. 3
03

Whether termination was fair and lawful

Holding

Termination was unfair: the Respondent terminated the contract without notice or hearing, ostensibly on a fresh demand for a Form 4 certificate known not to exist at recruitment, and failed to justify termination under Sections 43 and 45.

Reasoning

The Respondent produced no contract expiring on 20th June 2014 and vacillated between short-term contracts and casual engagement. The demand for a KCSE certificate was irrational, being a fresh requirement not made at recruitment where non-possession was known. The Claimant was not heard or given notice, violating Section 41; the Respondent failed to justify termination under Sections 43 and 45, satisfying Section 47para 5.

p. 4

Legal principles established

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  • It is the obligation of the Employer to document the employment relationship and supply the Court with written records disproving what the Employee alleges to comprise his terms and conditions of employment, under Sections 10para 7 and 74para 1 of the Employment Act.
  • A casual employee who works for a prolonged period merits conversion into regular employment under Section 37 of the Employment Act, with the full benefits available to regular employees.

Court orders

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  1. 1.Declaration that termination was unfair
  2. 2.Respondent to pay 7 months' wages in compensation for unfair termination at Kshs. 78,624
  3. 3.Respondent to pay 1 month wages in lieu of notice at Kshs. 11,232
  4. 4.Respondent to pay annual leave pay at Kshs. 36,288 (total award Kshs. 126,144)
  5. 5.Certificate of Service to issue to the Claimant
  6. 6.No order on costs and interest

Authorities

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Legislation

  • Employment Act 2007Sections 4, 5, 6, 10[7], 35, 35[6], 37, 41, 43, 45, 47[5], 49, 51, 74[1]
  • ILO Convention on Termination of Employment of 1982
  • Wage Order

Cases cited (2)

  • Francis Maina Kamau v. Lee Construction
    [2014] e-KLR
  • Nicholas Kipkemoi Korir v. Hatari Security Guards Limited
    Cause Number 1840 of 2015
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act 2007 (Sections 10[7], 35, 37, 41, 43, 45, 47[5], 49, 51, 74[1])

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Shanga Kitsao Mumba v Mabati Rolling Mills [2017] KEELRC 1778 (KLR)", Case Analysis (2017). Cause No 162 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1778/eng@2017-02-17

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