Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No. 537 of 2014· [2018] KEELRC 275 (KLR)

Robert Kiteme Mutisya & 7 others v Mawara Holdings Limited (Cause 537 of 2018) (Employment and Labour) [2018] KEELRC 275 (KLR)

Employment and Labour Relations Court
20 December 2018
HWHellen S. Wasilwa
2,789 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court ruled that long-serving 'casual' workers are permanent employees, and employers must strictly follow redundancy law before laying them off.

What this practically means

#

Executive summary

#
Eight claimants, employed by Mawara Holdings Limited on diverse dates between 2004 and 2010 as general labourers and one supervisor, sued for declarations that their termination on 2nd May 2013 was wrongful and unfair, and for terminal benefits, lost income, remittance of unpaid NSSF contributions and certificates of service. The Respondent denied formal contracts, asserting the Claimants were casuals lawfully laid off on account of redundancy, with dues paid. CW1 testified the Claimants worked continuously, earned Kshs. 6,000 monthly, had NSSF deductions made but not remitted, and received no notice. RW1 (Farm Manager) admitted producing no documents proving staff consultation, notification to the Labour Office or payment of terminal dues; RW2 (accountant) admitted no documentary proof of leave allowance payment. The court held that under Section 37 of the Employment Act the Claimants, having served over three continuous months, were not casuals but deemed monthly contract employees. The Respondent's admission that work had reduced established redundancy, but Section 40(1) was not complied with: no notice, no consultation, no Labour Officer notification. The Claimants were found unfairly declared redundant. The court awarded each Claimant one month's notice pay, 15 days' salary per completed year of service, and 8 months' salary as compensation, in tabulated amounts, with costs plus interest. The court did not make orders on the NSSF remittance, lost income or certificate of service heads.

Key legal issues

#
01

Status of the Claimants - casual or term employees

Holding

The Claimants were not casuals; having worked continuously for periods of up to 9 years, their contracts were deemed monthly contracts under Section 37

Reasoning

The Respondent argued the Claimants were casuals with no formal contracts. The court applied Section 37 of the Employment Act, which deems a casual employee's contract to be one where wages are paid monthly once the employee works continuously for the equivalent of one month or more. The Claimants served between 2004 and 2013, and NSSF and NHIF dues were deducted and remitted, demonstrating continuous employment rather than casual engagement.

p. 4
02

Compliance with Section 40(1) of the Employment Act in declaring redundancy

Holding

The termination on account of redundancy was unfair because the Respondent failed to comply with Section 40(1)

Reasoning

The Respondent admitted the lay-off was due to reduced work, amounting to redundancy. However, RW1 produced no documents confirming a meeting with staff, no evidence of notification to the Labour Office, and no proof of payment of terminal dues. There was no indication the Claimants were given notice or consulted as required by Section 40(1)(a), (b) and (f). The court therefore found the redundancy procedurally flawed and unfair.

p. 5
03

Remedies for unfair redundancy

Holding

Each Claimant was awarded one month's notice pay, 15 days' salary per completed year of service as severance pay, and 8 months' salary as compensation for unlawful redundancy

Reasoning

Applying Sections 40(1)(f) and (g) and Section 49 of the Employment Act, the court awarded notice pay and severance pay at the statutory minimum of 15 days per completed year of service, together with the equivalent of 8 months' salary as compensation for the unfair termination, with tabulated figures for each Claimant.

p. 5

Legal principles established

#
  • A casual employee who works continuously for the equivalent of not less than one month, or performs work expected to last three months or more, is deemed to be employed on monthly wages under Section 37 of the Employment Act and can no longer be treated as a casual
  • An employer declaring redundancy must strictly comply with all the conditions in Section 40(1) of the Employment Act, including written notice to the employee and the labour officer not less than one month before termination, consultation, and payment of notice and severance pay; failure renders the redundancy unfair

Court orders

#
  1. 1.Award to each Claimant of one month's salary as notice pay
  2. 2.Award to each Claimant of 15 days' salary for each year worked as severance pay
  3. 3.Award to each Claimant of 8 months' salary as compensation for unlawful redundancy
  4. 4.Payment of the tabulated award amounts to each of the 8 Claimants (Robert Mutisya = 149,175; Fredrick Mambo = 149,178; Margaret Warui = 155,664; Emmer Muthoni = 149,178; Hama Wanjiku Karanja = 155,664; Philomena Njuguna = 175,122; James Waweru = 142,692; Salome Otemba = 155,664)
  5. 5.Respondent to pay costs of the suit plus interest at Court rates with effect from the date of the judgment

Authorities

#

Legislation

  • Employment ActSection 31
  • Employment ActSections 41 and 43
  • Employment ActSection 49
  • Employment ActSection 51
  • Employment ActSection 37
  • Employment ActSection 40(1)
  • Employment ActSections 43(1) and 45(2)
  • Employment ActSection 36
  • The Regulation of Wages (General) (Amendment) Ordernot specified
  • Labour Institutions ActSection 48(4)(2)

Cases cited (5)

  • Charles Onchoke Versus Kisii University
    ELRC Cause 24 of 2017
  • Sikuku Nzuvi Ngii versus Gacal Merchants Limited
    (2015) eKLR
  • Elizabeth Onyango Versus Mobile Planet Limited
    (2014) eKLR
  • Charles Nyangi Nyamohanga Versu Action Aid International
    (2015) eKLR
  • Bernard Khakuli Versus Khilesh Natubhai & Another
    (2017) eKLR
Jurisdiction invoked
Article 162(2) of the Constitution establishing the Employment and Labour Relations Court (implied by the court's jurisdiction over the industrial cause); Employment Act, No. 11 of 2007

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

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

Cite this brief

#

Cite this brief

Caselaw, "Robert Kiteme Mutisya & 7 others v Mawara Holdings Limited (Cause 537 of 2018)  (Employment and Labour) [2018] KEELRC 275 (KLR)", Case Analysis (2018). Cause No. 537 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/275/eng@2018-12-20

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