Saha Mwadziwe Saha v Jumbo Wire Product Limited [2019] KEELRC 921 (KLR)
The bottom line
#A Kenyan employer couldn't explain why it fired only one worker, so the court ruled the dismissal unfair and ordered compensation.
What this practically means
#Executive summary
#Key legal issues
#Status of employment – casual or regular
The Claimant was in regular employment
From the Weekly Wages Register and the nature of the work, the Court found the Claimant performed work central to the Respondent's business and merited conversion to regular employment. Payment of one month's salary in lieu of notice could only have been paid to a regular employee under Sections 35(1)(c) and 36 of the Employment Act.
Validity and fairness of termination
Termination was unfair – no valid reason established
The Respondent alleged scaling down of operations, which alludes to operational requirements under Section 45(2)(b)(ii), but did not establish it: the scaling down was not shown to have affected other employees, and the assessment of who was 'smart' was unexplained. The Claimant's allegations of victimization for union membership or a bathroom visit were not established either.
Compensation for unfair termination
Equivalent of 3½ months' salary granted instead of 12 months
Given the relatively short service of approximately 2 years on renewable 3-month contracts, with no guarantee of continued employment, the maximum 12 months' compensation was not merited; 3½ months' salary was awarded.
Annual leave entitlement
Annual leave pay awarded for one year only (21 days at Kshs. 12,495)
No evidence showed the Claimant utilized or was paid in lieu of leave, and the casual-employment defence failed with the finding of regular employment. However, the Wages Register showed many rest days, so full claimed leave would be distortive; leave was limited to one year's statutory minimum.
Alleged unfair labour practice in issuing 3 months' contracts
Claim refused
The Claimant acceded to the 3-month contracts, which were a lawful mechanism converting him from casual to contractual employment; no unfair labour practice was made out.
Legal principles established
#- An employee performing work central to the employer's business, paid one month's salary in lieu of notice, merits conversion to regular employment
- The employer bears the legal burden of proving the reasons justifying termination under Sections 43 and 45 of the Employment Act
- Termination based on unexplained, uneven selection of a single employee is not based on valid reason and is unfair
Court orders
#- 1.The Respondent shall pay the Claimant equivalent of 3½ months' salary in compensation for unfair termination at Kshs. 54,145 and annual leave at Kshs. 12,495 – total Kshs. 66,640
- 2.Certificate of Service to issue
- 3.No order on the costs
- 4.Interest granted at the rate of 14% per annum from the date of Judgment till payment is made in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act 2007 (first-instance employment claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Saha Mwadziwe Saha v Jumbo Wire Product Limited [2019] KEELRC 921 (KLR)", Case Analysis (2019). Statement of Claim filed 29th March 2016 (ELRC, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/921/eng@2019-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.