David Chepkwony & 27 others v Tirgaga Factory Limited & another [2018] KEELRC 951 (KLR)
The bottom line
#A Kenyan court ruled that tea factory workers hired as 'casuals' for years became permanent employees, so firing them without hearing was unlawful and compensation is due.
What this practically means
#Executive summary
#Key legal issues
#Status of the claimants' employment – casual/seasonal or permanent/regular
The claimants had been in continuous employment for long periods (8 to 19 years), so their casual/seasonal status converted to permanent terms under section 37 of the Employment Act
The court found the nature of the claimants' duties and the long periods of service contradicted the respondent's case of seasonal and casual employment. The CBA clause 22 on seasonal employment limited such engagement to three consecutive months, and the claimants worked far longer, as evidenced by NSSF statements. The mutual agreement of 27 September 2017 with the union also treated them as entitled to terminal dues. Section 37 therefore converted their contracts to monthly terms.
Whether termination was wrongful, unfair and unlawful
The termination was wrongful, unfair and unlawful; the claimants adduced substantial evidence controverting the respondent's seasonal-employment theorem
The court agreed the claimants had become permanent employees and their termination without fair reason or fair procedure under sections 41, 43 and 45 of the Employment Act was unlawful. The respondent failed to discharge its burden of proving a valid and fair reason and fair procedure, and its abuse-of-process argument based on payment of terminal dues did not hold.
Whether the claimants are entitled to the relief sought
Yes; having established unlawful termination, the claimants became entitled to relief – declaration, notice pay, compensation and costs
The court held that success on the unlawful termination issue entitled the claimants to the relief sought, and awarded a declaration plus one month's salary in lieu of notice and eight months' compensation for each of the 28 claimants, with costs to the respondent.
Legal principles established
#- Casual employment that exceeds one month of continuous working days or work expected to last three months or more is converted by statute into a monthly-paid term contract
- Payment of terminal dues under a mutual agreement between employer and union does not extinguish an employee's contractual and statutory rights
Court orders
#- 1.A declaration that the termination of the employment of the claimants was unfair, unlawful and a fundamental violation of their rights
- 2.The respondents to pay each claimant one (1) month's salary in lieu of notice and eight (8) months' compensation for unlawful termination, with individual tabulated totals per claimant
- 3.The costs of the claim to be borne by the respondent
- Jurisdiction invoked
- Articles 41 and 47 of the Constitution read with the Employment Act, 2007 (fair labour practices and fair administrative action), as a first-instance employment cause before the Employment and Labour Relations Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "David Chepkwony & 27 others v Tirgaga Factory Limited & another [2018] KEELRC 951 (KLR)", Case Analysis (2018). Cause No. 25 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/951/eng@2018-10-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.