Abdalla Kusimba Makokha v Prime Steel Mills Limited [2017] KEELRC 1993 (KLR)
The bottom line
#A Kenyan court ruled that a 'casual' worker who worked continuously for over a month becomes a full employee entitled to protection from unfair dismissal.
What this practically means
#Executive summary
#Key legal issues
#Conversion of casual employment to full-time employment
The claimant who worked continuously for 3 and a half years without a written contract became a full-time employee by operation of section 37 of the Employment Act, 2007, with all attendant statutory protections
The claimant worked continuously from April 2012 to June 2015 in the same position without a break and without a written contract. Section 37 of the Employment Act, 2007 deems an employee engaged continuously for over a month in the same position a full-time employee whose benefits are protected in law, entitling him to claim rights under the Act.
Fairness of the termination
The termination without notice, reason or a hearing was procedurally and substantively unfair, entitling the claimant to the remedies for unfair termination
The claimant testified he was not given reasons for his termination and no record of the reasons exists. With no defence filed to controvert the claim, his evidence is taken as true. Termination without notice, reason or hearing violates the Employment Act, 2007, and the remedies sought for unfair termination are therefore due.
Overtime claim
The overtime claim of 6,552 hours was declined as irrational and unsupported by the claimant's own evidence and computations
The court attempted to rationalise the claim of 6,552 overtime hours over 38 months but found the figures did not add up. Submissions rationalised 5,040 hours using a daily rate of Kshs.444.00 whereas the claimant testified he earned Kshs.442.00 per day. The inconsistencies meant the claim failed despite the absence of a defence.
Annual leave entitlement
Leave pay in lieu of untaken annual leave was awarded at Kshs.39,780.00 for the three years worked
Annual leave is a statutory right under section 28 of the Employment Act. The claimant worked for three years without taking annual leave or being paid in lieu, so leave pay was due and awarded at Kshs.39,780.00.
Legal principles established
#- An employee engaged continuously for over a month in the same position is deemed a full-time employee entitled to statutory protections under section 37 of the Employment Act, 2007
- Termination of employment without notice, reason or a hearing is procedurally and substantively unfair
- Where an uncontroverted claim is made in the absence of any defence, the claimant's evidence is taken as true
Court orders
#- 1.Judgment entered for the claimant against the respondent for compensation at Kshs.159,120.00 (12 months gross pay)
- 2.Notice pay of Kshs.13,260.00 awarded
- 3.Leave pay of Kshs.39,780.00 awarded
- 4.Costs of the suit awarded to the claimant
- Jurisdiction invoked
- Employment and labour relations jurisdiction over a claim for unfair termination and employment benefits under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Abdalla Kusimba Makokha v Prime Steel Mills Limited [2017] KEELRC 1993 (KLR)", Case Analysis (2017). Cause No. 999 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1993/eng@2017-09-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.