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ELRCPartially AllowedCause No. 13 of 2018· [2018] KEELRC 1608 (KLR)

Naumy Chelangat Birir v Kapkoros Tea Factory Company Limited [2018] KEELRC 1608 (KLR)

Employment and Labour Relations Court of Kenya at Kericho
29 June 2018
DMD. K. Njagi Marete
1,406 words in judgment
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The bottom line

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A Kenyan court ruled that a tea factory worker engaged seasonally since 1994 was actually a permanent employee, making her dismissal unlawful.

What this practically means

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Executive summary

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The claimant was employed by the respondent tea factory from 1st August 1994 in the sorting and withering sections and was dismissed on 30th November 2017. He claimed wrongful and unlawful termination in violation of sections 41(1), 44(4) and 45(2)(a) and (4)(b) of the Employment Act, 2007, seeking notice pay, 23 years' unpaid leave, gratuity/service pay, twelve months' compensation, interest, a Certificate of Service, reinstatement and costs, totaling about Kshs. 2 million. The respondent denied the claim, asserting that the claimant was a casual employee on a Seasonal Workers Contract and relying on Rashid Odhiambo Allogoh & 245 Others v Haco Industries Limited. The matter was disposed of by written submissions and the court framed four issues: whether there was a termination, whether it was unlawful, entitlement to relief, and costs. Judge D.K.N. Marete held that continuous employment since 1994 together with the CBA and monthly union dues deductions brought the claimant within section 37 of the Employment Act, entrenching permanent employment. The respondent's seasonal contract and mere denial did not rebut this. The court found unlawful termination and awarded one month's salary in lieu of notice (Kshs. 23,238.60) and twelve months' compensation (Kshs. 278,863.20), totaling Kshs. 302,101.80, ordered issuance of a Certificate of Service, and awarded costs to the claimant. The claimed leave, gratuity, reinstatement and interest were not carried into the final orders. Judgment delivered on 29th June 2018.

Key legal issues

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01

Whether the claimant was a permanent rather than casual/seasonal employee

Holding

The claimant was a permanent employee by virtue of continuous service since 1994 and the applicable CBA, invoking section 37 of the Employment Act.

Reasoning

The claimant's submissions showed continuous work for the respondent for more than three months since August 1994, with monthly union dues deductions under a subsisting CBA. The respondent only annexed a Seasonal Workers Contract from 2017 and did not rebut the long periods of engagement. In the absence of rebuttal, the court found permanent employment under section 37.

p. 3
02

Whether the termination was wrongful, unfair and unlawful

Holding

The court found unlawful termination of employment of the claimant by the respondent.

Reasoning

Having found permanent employment, the court held that the termination without the procedures laid down in the Employment Act was unlawful. The respondent's denial and seasonal contract did not suffice to displace the claimant's case of unlawful termination.

p. 3
03

Entitlement to relief

Holding

The claimant was entitled to relief, awarded as one month's notice pay and 12 months' compensation plus a Certificate of Service.

Reasoning

Having succeeded on unlawful termination, the claimant was entitled to relief. The court awarded one month's salary in lieu of notice and twelve months' compensation, and ordered issuance of a Certificate of Service. Other heads claimed (leave, gratuity) were not carried into the final orders.

p. 3

Legal principles established

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  • A casual employee engaged continuously beyond the statutory threshold is deemed to be employed on monthly terms under section 37 of the Employment Act, amounting to permanent employment.

Court orders

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  1. 1.One month's salary in lieu of notice of Kshs. 23,238.60
  2. 2.Twelve months' compensation for unlawful termination of employment of Kshs. 278,863.20, totaling Kshs. 302,101.80
  3. 3.The respondent to issue a Certificate of Service to the claimant
  4. 4.Costs of the claim to be borne by the respondent

Authorities

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Legislation

  • Employment Act, 2007section 41(1)
  • Employment Act, 2007section 44(4)
  • Employment Act, 2007section 45(2)(a) and (4)(b)
  • Employment Act, 2007section 37
  • Employment Act, 2007section 35(1)(c)
  • Labour Institutions Actsection 15

Cases cited (1)

  • Rashid Odhiambo Allogoh & 245 Others v Haco Industries Limited
    [2015] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act over employment claims

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, "Naumy Chelangat Birir v Kapkoros Tea Factory Company Limited [2018] KEELRC 1608 (KLR)", Case Analysis (2018). Cause No. 13 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1608/eng@2018-06-29

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