Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCauses No. 49, 51 and 52 of 2017 (consolidated)· [2019] KEELRC 806 (KLR)

Collins Olande v Equator Bottlers Limited [2019] KEELRC 806 (KLR)

Employment and Labour Relations Court
18 September 2019
MNMathews N. Nduma
2,633 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court ruled that long-serving 'casual' workers are actually permanent employees, and firing them without notice or a hearing is unfair and compensable.

What this practically means

#

Executive summary

#
Three claimants filed separate causes (Nos. 49, 51 and 52 of 2017) against their common employer, heard together before the Employment and Labour Relations Court. Steve Okumu Ochieng and Gilbert O. Nyawiri alleged that on 4th April 2016 a security officer accused them of drinking soda based on empty bottles found near them while they loaded a truck, and summarily dismissed them without show cause letters or hearing. The respondent contended they were casuals engaged on daily rates as and when work was available, and that their engagements simply ceased. The court held that their work could not reasonably be expected to be completed within three months and therefore, under Section 37(1)(b) of the Employment Act, 2007, they were not casuals but deemed monthly employees subject to Section 35(1)(c). Their summary dismissal without notice or hearing violated Sections 36, 41, 43, 44 and 45, and they proved unlawful and unfair dismissal on a balance of probabilities, attracting compensation under Section 49(1)(c) and (4). Each was awarded one month's salary in lieu of notice (Kshs. 13,702), five months' salary as compensation (Kshs. 68,510) and leave for three years (Kshs. 41,106), totalling Kshs. 123,318, with interest and costs. Collins Adede, by contrast, had signed fixed-term contracts, a payment clearance certificate and a discharge voucher confirming his contract expired by effluxion of time with all terminal dues paid; the respondent discharged the burden of rebuttal under Sections 43, 45 and 47(5). His claim was dismissed in its entirety. Judgment was delivered on 18th September 2019 by Mathews N. Nduma, Judge.

Key legal issues

#
01

Status of Steve and Gilbert as casuals

Holding

They were not casuals; their service was continuous and deemed monthly, terminable by one month's notice

Reasoning

The claimants served from 2008/2009 performing work that could not reasonably be completed within three months, meeting the statutory definition excluding casual status. RW1 produced no records and could not confirm the engagement pattern. Their employment was therefore deemed monthly-rate employment under Section 37(1)(b), attracting Section 35(1)(c) notice and service pay.

p. 2
02

Lawfulness of the summary dismissal of Steve and Gilbert

Holding

Unlawful and unfair; five months' salary compensation awarded

Reasoning

The security officer accused them of drinking soda on the strength of empty bottles, and they were dismissed on the spot without notice, show cause letter or hearing. RW1 had no personal knowledge and no credible rebuttal evidence. The respondent had no valid reason and violated Sections 36, 41, 43, 44 and 45, warranting compensation under Section 49(1)(c) and (4).

p. 3
03

Whether Collins' contract expired by effluxion of time

Holding

Yes; his claim failed

Reasoning

Collins signed contracts dated 24/5/2013 and one expiring 30th September 2016. He signed a payment clearance certificate on 11th November 2016 acknowledging payment of salary, severance allowance and prorata leave, and a discharge voucher as full and final dues. The respondent discharged the burden under Sections 43, 45 and 47(5); Collins failed to prove unlawful curtailment.

p. 3

Legal principles established

#
  • An employee engaged for work that cannot reasonably be completed within three months is not a casual employee under Section 37(1)(b) of the Employment Act, 2007
  • Employees who work continuously beyond the casual threshold are deemed to be employed on monthly wages to which Section 35(1)(c) notice applies
  • Summary dismissal without notice, show cause letter or hearing violates Sections 36, 41, 43, 44 and 45 of the Employment Act and attracts compensation under Sections 49(1)(c) and (4)

Court orders

#
  1. 1.Judgment entered in favour of Steve Okumu Ochieng: one month salary in lieu of notice Kshs. 13,702; five months salary in compensation for unlawful dismissal Kshs. 68,510; leave days not taken for 3 years Kshs. 41,106; total Kshs. 123,318
  2. 2.Judgment entered in favour of Gilbert Otieno Nyawiri: one month salary in lieu of notice Kshs. 13,702; five months salary in compensation for unlawful and unfair dismissal Kshs. 68,510; payment in lieu of three years leave not taken Kshs. 41,106; total Kshs. 123,318
  3. 3.Service pay at 15 days salary for each completed year of service awarded to Steve and Gilbert from January 2008 and May 2009 respectively
  4. 4.Interest at court rates from date of judgment till payment in full in respect of both claimants
  5. 5.Costs of the suit to Steve Ochieng and Gilbert Nyawiri
  6. 6.Claim by Collins Adede dismissed in its entirety

Authorities

#

Legislation

  • Employment Act, 2007Section 37(1)(b)
  • Employment Act, 2007Section 35(1)(c)
  • Employment Act, 2007Sections 36, 41, 43, 44, 45
  • Employment Act, 2007Sections 49(1)(c) and (4)
  • Employment Act, 2007Section 47(5)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Collins Olande v Equator Bottlers Limited [2019] KEELRC 806 (KLR)", Case Analysis (2019). Causes No. 49, 51 and 52 of 2017 (consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/806/eng@2019-09-18

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