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ELRCPartially AllowedCause No 819 of 2016 (lead file), consolidated cause· [2018] KEELRC 771 (KLR)

Mwanjirani Mbuli Mwanjirani & another v Diamond Industries Limited [2018] KEELRC 771 (KLR)

Employment and Labour Relations Court
31 October 2018
LNLINNET NDOLO
941 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court awarded two workers leave pay after ruling they were not casual employees, but dismissed their unfair dismissal claims.

What this practically means

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Executive summary

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This consolidated ELRC cause, with Cause No 819 of 2016 as the lead file by consent, was brought by Mwanjirani Mbuli Mwanjirani (1st Claimant) and Evanson Mwandoe (2nd Claimant), both employed as helpers by the Respondent at a daily rate of Kshs. 470 paid weekly. They alleged dismissal without notice on 26th April 2015 (the 2nd Claimant's date is stated as 2016), long retention in casual employment, non-remittance of NSSF and NHIF dues, denial of trade union membership, denial of annual leave, uncompensated overtime, failure to pay terminal benefits, and mistreatment. They sought reinstatement, notice pay, leave pay, house allowance, terminal benefits, overtime compensation, 12 months' salary compensation and damages. The Respondent denied terminating them, asserting they deserted duty from 30th April 2015 and produced casual payment vouchers showing they worked on 27th, 28th and 29th April 2015. The Court framed two issues: unlawful dismissal and entitlement to remedies. It found the dismissal claim unproved, the pleadings containing falsehoods contradicted by documentary evidence, and dismissed the claims for dismissal, notice pay, house allowance (daily rate being consolidated pay), terminal benefits, damages and overtime. However, the Respondent's own witness admitted continuous work, defeating the casual employment defence; with no leave records produced, the leave pay claims succeeded. Judgment was entered for the 1st Claimant at Kshs. 197,400 and the 2nd Claimant at Kshs. 108,570, with interest at court rates from judgment until payment in full, and costs to the Claimants.

Key legal issues

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01

Whether the Claimants were unlawfully dismissed

Holding

Not proved; documentary evidence showed the Claimants worked on dates contradicting their claim of dismissal on 26th April 2015

Reasoning

The Claimants alleged dismissal on 26th April 2015, but the Respondent produced casual payment vouchers for 27th and 28th April 2015 showing payments to both Claimants. Lacking any explanation to counter this documentary evidence, the Court found the pleadings on dismissal to be falsehoods and dismissed the claim for unlawful dismissal and notice pay.

p. 3
02

Whether the Claimants were casual employees and entitled to leave pay

Holding

Claim of casual employment rejected; Claimants entitled to annual leave and leave pay succeeded

Reasoning

The Respondent maintained the Claimants were casuals paid a daily rate, but its witness admitted in cross-examination that the Claimants worked continuously. The Court held the casual employment defence was without basis in law and fact. Since the Respondent produced no leave records showing leave days had been exhausted, the leave pay claim succeeded.

p. 3
03

House allowance, terminal benefits, damages and overtime

Holding

All failed as unproved or unfounded

Reasoning

The Court held the daily rate was ordinarily a consolidated pay rate, defeating the house allowance claim. No basis was laid for terminal benefits or damages, and the overtime compensation claim was not proved. Each of these heads was accordingly dismissed.

p. 3

Legal principles established

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  • Where an employer alleges workers are casual employees but admits they worked continuously, the claim of casual employment fails and the workers are entitled to annual leave; the burden lies on the employer to produce leave records showing leave was taken.
  • Unchallenged documentary evidence by an employer may defeat pleadings that consist of falsehoods.

Court orders

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  1. 1.Dismissal of the claim for unlawful dismissal and notice pay
  2. 2.Judgment for the 1st Claimant of Kshs. 197,400 being leave pay for 20 years
  3. 3.Judgment for the 2nd Claimant of Kshs. 108,570 being leave pay for 11 years
  4. 4.Interest at court rates on the said amounts from the date of judgment until payment in full
  5. 5.Costs of the case awarded to the Claimants

Authorities

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Legislation

  • National Social Security Fund duesnot specified
  • National Hospital Insurance Fund duesnot specified
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (unfair labour practices and wrongful dismissal)

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, "Mwanjirani Mbuli Mwanjirani & another v Diamond Industries Limited [2018] KEELRC 771 (KLR)", Case Analysis (2018). Cause No 819 of 2016 (lead file), consolidated cause. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/771/eng@2018-10-31

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