Humphery Wetende Musinde v EPCO Builders Limited [2019] KEELRC 1035 (KLR)
The bottom line
#A Kenyan worker dismissed without a hearing won over Kshs.111,000 because 'casual' workers become permanent employees after a month.
What this practically means
#Executive summary
#Key legal issues
#Status of the claimant's employment
The claimant was not a casual employee; he worked over three years and was paid monthly, so his contract was deemed a monthly contract.
Section 2 of the Employment Act defines a casual employee as one paid at the end of each day and not engaged for longer than twenty-four hours at a time. Section 37(1) converts continuous casual work of not less than one month into monthly terms. The claimant worked from February 2010 to August 2013 on a monthly salary of Kshs.9,360 with a payslip, so he fell outside the casual definition.
Procedural and substantive fairness of the dismissal
The dismissal was unfair both procedurally and substantively: no hearing or show cause, and no proof the claimant hid the nails.
The supervisor's letter itself shows the decision to dismiss was recommended by Mr. James Kioko before any hearing, and no show cause letter, disciplinary invitation or minutes were produced. RW1 admitted the claimant was not given notice and conceded no disciplinary records existed. The court also found RW1's testimony about a hearing and verbal suspension untrue, and the dismissal letter was never issued to the claimant.
Remedies and computation of terminal dues
Notice pay, leave pay and six months' compensation awarded; service pay refused; computation based on statutory minimum wage.
Notice pay was awarded as no notice was issued. Leave was not denied and was awarded at 1.75 days per month for 43 months (75.25 days). Service pay failed because the claimant contributed to NSSF. Under Sections 3(6) and 26 of the Employment Act and Section 48(1) of the Labour Institutions Act, statutory minimum wages substitute for lower contractual pay, so the Regulation of Wages (Amendment) Order 2013 rate of Kshs.11,248.10 was used.
Legal principles established
#- A casual employee who works for the equivalent of not less than one month is deemed under Section 37(1) of the Employment Act to be on monthly terms, and Section 35(1)(c) applies.
- Where an employee is paid less than the statutory minimum wage, the court must apply the statutory minimum rates in computing terminal dues.
- Summary dismissal without a hearing or proof of the grounds alleged is unfair.
Court orders
#- 1.Declaration that termination of the claimant's employment was unfair both procedurally and substantively
- 2.One month's gross salary in lieu of notice of Kshs.11,248.10
- 3.Pay in lieu of 75.25 leave days of Kshs.32,554.60
- 4.Compensation of six months' gross salary of Kshs.67,488.60
- 5.Total award of Kshs.111,291.30
- 6.Respondent to pay claimant's costs
- 7.Decretal sum to attract interest at court rates from date of judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act and Labour Institutions Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Humphery Wetende Musinde v EPCO Builders Limited [2019] KEELRC 1035 (KLR)", Case Analysis (2019). Cause No 895 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1035/eng@2019-07-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.