Charles Onchoke v Kisii University [2018] KEELRC 1753 (KLR)
The bottom line
#A Kenyan court ruled that casual workers engaged continuously for over a month become permanent employees by law, entitling them to fair dismissal procedures.
What this practically means
#Executive summary
#Key legal issues
#Whether an employment relationship existed between the claimant and the respondent
The court found employment existed; the respondent's pleadings denied employing the claimant yet admitted engaging him as a casual worker on need basis.
The respondent denied ever employing the claimant but simultaneously pleaded that it hired him as a casual worker whenever there was work. In its submissions the respondent did not discount employment per se but only the nature of employment, describing the claimant as a casual worker. The court resolved this contradiction in favour of a finding of employment, holding the denial to be mere semantics.
Whether the claimant was a casual or permanent employee
The claimant's continuous service of about 27 or more working days a month converted his casual employment into permanent employment by operation of section 37 of the Employment Act, 2007.
The claimant's documents showed he worked 27 or more days in many months from 2013 to 2016. Applying section 37(1)(a), (2) and (3), continuous working days aggregating the equivalent of not less than one month deems the contract one where wages are paid monthly. The court adopted the reasoning in Sikuku Nzuvi Ngii v Gacal Merchants Ltd and declared the terms converted from casual to permanent.
Whether there was a termination of employment
Having found permanent employment by operation of law, the ending of the claimant's services on 7th December 2016 pursuant to a memo on 'permanent casuals' amounted to a termination.
The respondent argued that the claimant's casual engagement simply ended when his services were no longer required. The court rejected this on the basis of its finding of permanent employment by operation of law, and noted that the respondent's own internal memo referencing 'permanent casuals' betrayed the true position on the ground. A termination was therefore had.
Whether the termination was wrongful, unfair and unlawful
The termination was wrongful, unfair, unlawful and unconscionable because the claimant was not subjected to any disciplinary process as required by section 41 of the Employment Act.
The claimant was merely released to walk home from employment without any disciplinary process, on the mistaken premise that as a casual he was not entitled to such process. Relying on John Wafula Simiyu v Star Publications Limited, the court held that performance monitoring proceedings are not disciplinary proceedings and that absence of due process rendered the termination unlawful.
Entitlement to relief and computation of the monthly salary
The claimant was entitled to relief; his monthly salary was computed at Kshs.1,119.80 per day x 30 days = Kshs.33,594.00, and he was awarded one month's notice pay and six months' compensation.
Having succeeded on unlawful termination, the claimant was entitled to relief. The court faced the dilemma that he had no fixed monthly income, his pay depending on days worked. It solved this by computing monthly pay from the daily wage multiplied by 30 days, then awarded one month's salary in lieu of notice and six months' salary as compensation, totalling Kshs.235,158.00.
Legal principles established
#- Where a casual employee works continuously for a period aggregating not less than one month, the contract of service is deemed by operation of law to be one where wages are paid monthly, converting the casual employment to permanent employment under section 37 of the Employment Act.
- Termination of employment without any disciplinary process in terms of section 41 of the Employment Act constitutes wrongful, unfair and unlawful termination.
Court orders
#- 1.A declaration that the claimant's employment had converted from casual to permanent.
- 2.A declaration that the termination of employment of the claimant by the respondent was wrongful, unfair, unlawful and unconscionable in law.
- 3.One (1) month's salary in lieu of notice of Kshs.33,594.00.
- 4.Six (6) months' salary as compensation for unlawful termination, being 6 x Kshs.33,594.00 = Kshs.201,564.00.
- 5.Total award of Kshs.235,158.00.
- 6.The costs of the claim to be borne by the respondent.
- Jurisdiction invoked
- Employment and Labour Relations Court established under Article 162(2) of the Constitution; claim brought under the Employment Act, 2007 (Sections 37, 41 and 45)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (6)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Perter Maundu Malonza v Frigoken Limited [2020] KEELRC 1175 (KLR)[2020] KEELRC 1175 (KLR)29 Apr 2020
- Adan Abdow Hassan v Hans Kenya Limited [2019] KEELRC 489 (KLR)[2019] KEELRC 489 (KLR)1 Nov 2019
- Adan Abdow Hassan v Hans Kenya Limited [2019] KEELRC 489 (KLR)[2019] KEELRC 489 (KLR)1 Nov 2019
- Stephen M. Kitheka v Kevita International Limited [2018] KEELRC 432 (KLR)[2018] KEELRC 432 (KLR)20 Dec 2018
- Robert Kiteme Mutisya & 7 others v Mawara Holdings Limited (Cause 537 of 2018) (Employment and Labour) [2018] KEELRC 275 (KLR)[2018] KEELRC 275 (KLR)20 Dec 2018
- Nelson Okello Gunga v BIDCO Oil Refineries Limited [2018] KEELRC 206[2018] KEELRC 206 (KLR)20 Dec 2018
Cite this brief
#Cite this brief
Caselaw, "Charles Onchoke v Kisii University [2018] KEELRC 1753 (KLR)", Case Analysis (2018). Cause No. 24 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1753/eng@2018-06-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.