Gilbert Kanganga & 2 others v Associated Steel Limited [2018] KEELRC 881 (KLR)
The bottom line
#A Kenyan employer who couldn't produce employment records had to accept workers' accounts of their service, and three former casual workers won terminal dues.
What this practically means
#Executive summary
#Key legal issues
#Applicable law to claimants terminated before and after commencement of Employment Act, 2007
Gilbert and Alex, terminated before commencement, remained casuals under the repealed Act; Protus, terminated after commencement, is covered by section 37(1)
The court held the termination dates undisputed and applied the law in force at each termination. For those terminated before the 2007 Act came into force, there was no provision equivalent to section 37(1), so their employment remained casual. Protus's termination postdated the Act, so section 37(1) deemed his employment converted to a monthly contract.
Length of service and burden of producing employment records
The respondent's failure to produce employment records it was legally bound to keep meant the claimants' evidence of earlier start dates was accepted
The respondent did not file records of casuals in court despite being required by the repealed Employment Act and the Regulation of Wages and Conditions of Employment Act to keep them. RW1 conceded such records existed but were not filed, and could not substantiate his claim that the wage cards produced were not genuine. The court therefore credited the claimants' testimony on start dates.
Entitlement to gratuity
Gratuity was refused as neither the applicable law nor the claimants' terms provided for it
Although the memorandum of claim sought gratuity of 15 days per completed year, the court found no statutory or contractual basis for gratuity for any of the claimants, and none was awarded. Protus received service pay instead, as a deemed monthly employee under section 37(1).
Whether settlement at the Labour Office extinguished the claim
The court did not uphold the settlement as a bar, and awarded further terminal dues
The respondent argued the dispute had been settled at the Labour Office with payment of Kshs.42,000. RW1 conceded the receipt did not state the names of the claimants, and CW1 testified he was unaware of the payment. The court nonetheless proceeded to assess entitlements and awarded additional sums for leave, notice and service pay.
Legal principles established
#- Where an employer fails to keep and produce employment records it is bound by law to keep, the court will accept the claimant's evidence on length of service
- Under section 37(1) of the Employment Act, 2007, a casual employee engaged after the Act came into force is deemed converted to a monthly contract
- Leave claims are subject to the three-year limitation period under the Limitation of Actions Act
Court orders
#- 1.Judgment for Gilbert Kanganga in the sum of Kshs.39,000
- 2.Judgment for Alex Munala Shikumi in the sum of Kshs.39,000
- 3.Judgment for Protus Otimo Ogola in the sum of Kshs.35,375
- 4.Respondent to issue certificates of service to the claimants
- 5.Respondent to pay claimants' costs
- Jurisdiction invoked
- Employment and labour relations dispute referred to the Employment and Labour Relations Court under the Employment Act, 2007 and the Labour Institutions Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gilbert Kanganga & 2 others v Associated Steel Limited [2018] KEELRC 881 (KLR)", Case Analysis (2018). Not stated in judgment (memorandum of claim dated 2nd December 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/881/eng@2018-10-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.