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ELRCPartially AllowedNot stated in judgment (memorandum of claim dated 2nd December 2009)· [2018] KEELRC 881 (KLR)

Gilbert Kanganga & 2 others v Associated Steel Limited [2018] KEELRC 881 (KLR)

Employment and Labour Relations Court
26 October 2018
1,867 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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Three claimants sued ASL Limited claiming they were employed as casuals between 1997 and 2008 and that their services were terminated without reason or payment of terminal benefits. They sought payment in lieu of notice, gratuity of 15 days per completed year, earned leave, certificates of service and interest. The respondent admitted later start dates, denied termination, and asserted the dispute was settled at the Labour Office, Industrial Area, where it paid Kshs.42,000 in ex gratia and leave allowance. It relied on the Court of Appeal decision in Rashid Odhiambo Allogoh v Haco Industries to argue that claimants terminated before the Employment Act, 2007 remained casuals, section 37 not applying retrospectively. At the hearing the claimants testified to their terms of work; the respondent's Administration Manager conceded that records of casuals existed but were not filed, and that the Labour Office receipt did not name the claimants. The court identified the governing issue as the law applicable to each claimant by termination date: Gilbert and Alex, terminated before the 2007 Act, remained casuals under the repealed Act and were entitled only to leave and notice; Protus, terminated after commencement, was deemed converted to a monthly contract under section 37(1) and entitled to leave, notice and service pay. Because the respondent failed to produce employment records it was bound to keep, the court accepted the claimants' evidence on length of service, awarding six years' leave to Gilbert and Alex (Kshs.31,500 each plus one month's notice of Kshs.7,500) and to Protus leave of Kshs.16,625, notice of Kshs.7,500 and service pay of Kshs.11,250. Gratuity was refused as neither law nor terms provided for it. Judgment was entered for Kshs.39,000, Kshs.39,000 and Kshs.35,375 respectively, with certificates of service and claimants' costs.

Key legal issues

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01

Applicable law to claimants terminated before and after commencement of Employment Act, 2007

Holding

Gilbert and Alex, terminated before commencement, remained casuals under the repealed Act; Protus, terminated after commencement, is covered by section 37(1)

Reasoning

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.

p. 3
02

Length of service and burden of producing employment records

Holding

The respondent's failure to produce employment records it was legally bound to keep meant the claimants' evidence of earlier start dates was accepted

Reasoning

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.

p. 3
03

Entitlement to gratuity

Holding

Gratuity was refused as neither the applicable law nor the claimants' terms provided for it

Reasoning

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).

p. 4
04

Whether settlement at the Labour Office extinguished the claim

Holding

The court did not uphold the settlement as a bar, and awarded further terminal dues

Reasoning

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

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  • 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

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  1. 1.Judgment for Gilbert Kanganga in the sum of Kshs.39,000
  2. 2.Judgment for Alex Munala Shikumi in the sum of Kshs.39,000
  3. 3.Judgment for Protus Otimo Ogola in the sum of Kshs.35,375
  4. 4.Respondent to issue certificates of service to the claimants
  5. 5.Respondent to pay claimants' costs

Authorities

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Legislation

  • Employment Act2007; Section 37(1)
  • Employment Act (repealed)Not specified
  • Regulation of Wages and Conditions of Employment ActNot specified
  • Labour Institutions ActSection 63(1) and (2)
  • Limitation of Actions ActSection 4(1)

Cases cited (2)

  • RASHID ODHIAMBO ALLOGOH AND 245 OTHERS -V- HACO INDUSTRIES LIMITED
    [2015] eKLR
  • JOSPHAT NJUGUNA -V- HIGH RISE SELF GROUP
    (2014) eKLR
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

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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, "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.