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ELRCPartially AllowedNot stated in the judgment· [2018] KEELRC 1188 (KLR)

Bernard Mutuku Kimolo v East African Growers Limited [2018] KEELRC 1188 (KLR)

Employment and Labour Relations Court
20 April 2018
1,967 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that casual workers employed continuously for over three months earn full employee rights, and employers without records lose disputes.

What this practically means

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Executive summary

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The claimant sued the respondent for unfair termination and terminal dues, alleging he was employed from February 2000 as a permanent casual and terminated in February 2012 without notice, reason or hearing. He claimed notice pay, unpaid leave, service pay and compensation for leave days not taken. The respondent denied an employment relationship, asserting the claimant was a casual picked daily at the gate as orders fluctuated, and that employment began only in 2005. The respondent's human resource officer testified a master roll recorded daily attendance but it was not produced in court. The court framed three issues: employment relationship, unfair termination, and remedies. Applying sections 10(6) and (7) of the Employment Act, the court held the burden of proving employment terms lay with the employer who failed to produce records, and accepted the claimant's evidence of employment from 2000 to 2012. Applying section 37 and the Court of Appeal decision in Krystalline Salt Limited v Kwekwe Mwakele, the court found continuous work of 3 months or more converts casual status to protected employment. Termination without notice, hearing or genuine reasons violated sections 35, 41, 43 and 45 and was unfair. Judgment was entered for the claimant with declarations of employment and unfair termination, compensation of Kshs.9,000, notice pay of Kshs.9,000, leave pay of Kshs.13,500 (computed at 18 months), service pay of Kshs.49,500, and costs of the suit.

Key legal issues

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01

Whether there was an employment relationship between the parties

Holding

Yes - the claimant was employed from February 2000 to February 2012; the casual status had converted to protected employment under section 37

Reasoning

The respondent's witness admitted a master roll existed but it was never produced in court. Under section 10(6) and (7) of the Employment Act, the employer bears the burden of producing written particulars. In the absence of records, the court accepted the claimant's testimony that he worked continuously from 2000 to 2012. Continuous work over 3 months or more converts casual status to that of an employee with full rights under the Act.

p. 3
02

Whether the termination was unfair

Holding

Yes - the termination was without notice, reason or hearing, contrary to sections 35, 41, 43 and 45 of the Employment Act

Reasoning

The claimant was called by the human resource officer and told his work had ended, directed to leave the premises, with no disciplinary process, notice or reason given. Sections 35, 41, 43 and 45 require notice, hearing and genuine reasons. The respondent failed these statutory requirements, rendering the termination unfair.

p. 3
03

What remedies are due

Holding

One month's compensation, one month's notice pay, 18 months' leave pay and service pay for 11 years awarded

Reasoning

Compensation was assessed at one month's salary (Kshs.9,000) given 11 years of service. Notice pay was due because no notice was given. Leave was computed at 18 months under section 28(4), since leave must be taken within 18 months. Service pay was due because statutory dues (NSSF and NHIF) were not remitted, under section 35.

p. 3

Legal principles established

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  • Where an employer fails to produce employment records such as the written particulars or master roll, the burden of proving or disproving an alleged term of employment falls on the employer and the court is left with the word of the claimant
  • Under section 37 of the Employment Act, 2007, casual employment is converted to a term contract where the work is continuous, does not end each day, cannot reasonably be expected to be completed within a period, and continues in the aggregate equivalent to 3 months or more

Court orders

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  1. 1.A declaration that the claimant was the employee of the respondent
  2. 2.A declaration that termination of employment was unfair
  3. 3.Compensation awarded at Kshs.9,000.00
  4. 4.Notice pay Kshs.9,000.00
  5. 5.Leave pay Kshs.13,500.00
  6. 6.Service pay Kshs.49,500.00
  7. 7.Costs of the suit to the claimant

Authorities

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Legislation

  • Employment Actsection 10(6) and (7)
  • Employment Actsection 37
  • Employment Actsections 35, 41, 43 and 45
  • Employment Actsection 28(4)
  • Employment Actdefinition of casual employee

Cases cited (1)

  • Krystalline Salt Limited versus Kwekwe Mwakele & 67 others
    [2017] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour relations disputes (Employment Act, 2007)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Bernard Mutuku Kimolo v East African Growers Limited [2018] KEELRC 1188 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1188/eng@2018-04-20

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