Bernard Mutuku Kimolo v East African Growers Limited [2018] KEELRC 1188 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether there was an employment relationship between the parties
Yes - the claimant was employed from February 2000 to February 2012; the casual status had converted to protected employment under section 37
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.
Whether the termination was unfair
Yes - the termination was without notice, reason or hearing, contrary to sections 35, 41, 43 and 45 of the Employment Act
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.
What remedies are due
One month's compensation, one month's notice pay, 18 months' leave pay and service pay for 11 years awarded
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.
Legal principles established
#- 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
#- 1.A declaration that the claimant was the employee of the respondent
- 2.A declaration that termination of employment was unfair
- 3.Compensation awarded at Kshs.9,000.00
- 4.Notice pay Kshs.9,000.00
- 5.Leave pay Kshs.13,500.00
- 6.Service pay Kshs.49,500.00
- 7.Costs of the suit to the claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment and labour relations disputes (Employment Act, 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kenya Union of Road Contractors and Civil Engineering Workers v H. Young & Company (E.A) Limited (Cause E742 of 2021) [2024] KEELRC 885 (KLR)[2024] KEELRC 885 (KLR)24 Apr 2024
- Nyaga v Leaders Academy Limited (Cause 238 of 2016) [2022] KEELRC 1595 (KLR)[2022] KEELRC 1595 (KLR)31 May 2022
Cite this brief
#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.