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ELRCPartially AllowedNot stated in the judgment as provided· [2018] KEELRC 505 (KLR)

Justin Mutunga David v China Road & Bridge Corporation (K) Limited [2018] KEELRC 505 (KLR)

Employment and Labour Relations Court
19 November 2018
NMNzioki wa Makau
2,024 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Claimant sued his former employer, a contractor on the Nairobi Eastern and Northern Bypasses, alleging unfair summary dismissal on 19 June 2016 and underpayment below the statutory minimum hourly wage of Kshs. 97.90, claiming notice pay, six years of underpayments, June 2016 salary, accrued leave dues, compensation for unfair termination, costs and a certificate of service. The Respondent maintained that employment ended upon completion of the bypass project, that all terminal dues were paid through the Labour Office, and that wages were paid per the applicable CBA. The Claimant testified to working 12-hour days from 2009 and denied signing a contract; the Respondent's assistant personnel manager testified that he signed daily job cards, was paid including overtime, received pro rata leave dues, notice pay and a certificate of service. The court held that projects have a finite life span, so termination upon completion of the project was lawful and no unfairness arose. However, the payslips showed an hourly rate below the statutory minimum set by the Regulation of Wages General (Amendment) Order, 2015, entitling the Claimant to the difference, limited to the three years preceding the end of the contract as earlier years fell outside the limitation period. All other claimed sums were found to have been paid and signed for. Judgment was entered for the Claimant for Kshs. 335,664/- as underpayment, with interest at court rates from the date of judgment and costs of the suit.

Key legal issues

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01

Whether termination on completion of a project is unfair termination

Holding

It is not; a project's life is finite and employment ends with the project

Reasoning

The court distinguished project employment from ordinary enterprise employment. Since the road project came to an end, the Claimant could not anticipate working beyond its life, so the cessation of employment upon completion was lawful and no hearing under Section 41 was determinative.

p. 3
02

Whether the Claimant was underpaid below the statutory minimum wage

Holding

Yes; the hourly rate paid was below the statutory minimum and the Claimant was entitled to the difference

Reasoning

The payslips showed an hourly rate lower than the Kshs. 97.90 minimum set by the Regulation of Wages General (Amendment) Order, 2015. The court awarded the difference for 8-hour days, limited to the 3 years preceding the end of the contract due to limitation.

p. 3

Legal principles established

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  • Project employment is inherently finite and permanent employment cannot be contemplated beyond the life of a project
  • An employee paid below the statutory minimum wage is entitled to the difference, but only for the period within limitation

Court orders

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  1. 1.Judgment for the Claimant in the sum of Kshs. 335,664/- as underpayment
  2. 2.Interest on that sum at court rates from the date of judgment until payment in full
  3. 3.Costs of the suit to the Claimant

Authorities

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Legislation

  • Employment ActSection 41(1)
  • Employment ActSection 40
  • Regulation of Wages General (Amendment) Order, 2015Statutory minimum wage
  • Legal Notice No. 117Statutory minimum wage

Cases cited (5)

  • Kenya Union of Commercial Food and Allied Workers v Meru North Farmers Sacco Limited
    [2014] eKLR
  • David Kipkosgei Muttai v Green Palms Academy
    [2014] eKLR
  • Hesbon Ngaruiya Waigi v Equitorial Commercial Bank Limited
    [2013] eKLR
  • Thomas De La Rue v David Opondo Omutelema
    [2013] eKLR
  • Benson Omuyonga v Laxmanbhai Construction Ltd
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (statute not expressly quoted in the judgment)

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, "Justin Mutunga David v China Road & Bridge Corporation (K) Limited [2018] KEELRC 505 (KLR)", Case Analysis (2018). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/505/eng@2018-11-19

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