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ELRCDismissedCause No. 152 of 2018· [2019] KEELRC 1058 (KLR)

Hezron Ombati Babu v Menengai Oil Refineries Limited [2019] KEELRC 1058 (KLR)

Employment and Labour Relations Court of Kenya
11 July 2019
MMM. Mbaru
1,143 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled that daily-paid casual workers whose employment ends each day cannot claim unfair termination, leave, or house allowance benefits.

What this practically means

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Executive summary

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The claimant sued the respondent, a manufacturer, claiming damages for unfair termination of employment, one month's notice pay, pay for work on 48 public holidays, leave, house allowance, and a shortfall in final dues totalling over Ksh.400,000. He alleged he was employed as a general worker from 1st August 2014 at a daily wage and verbally dismissed on 5th March 2018 without notice or valid reason. The respondent denied the claims, asserting the claimant was a casual employee engaged intermittently between 2013 and 2018, who left on his own volition, and who had accepted a settlement of Ksh.21,445 brokered at the labour office. The respondent produced work sheets showing erratic, non-continuous attendance. The court found that the claimant was paid daily, and under Section 2 of the Employment Act, 2007 was therefore a casual employee whose engagement ended with each day worked upon payment. The work records, served in advance and challenged only in cross-examination, were adopted as the true attendance records, showing no continuous work beyond five days and thus no entitlement to leave, off days, house allowance or holiday pay. The court further held that NSSF contributions, made by both the respondent and the claimant's other full-time employer, do not confer an employment relationship. The claim for unfair termination and associated benefits did not arise. The payment of Ksh.21,445 was characterised as an act of benevolence. The claim was dismissed in its entirety, with costs awarded to the respondent.

Key legal issues

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01

Status of the claimant's employment

Holding

The claimant was a casual employee engaged intermittently; each day's engagement ended upon payment of the daily wage

Reasoning

The court found work attendance was erratic and never continuous for more than 5 days. The claimant was paid daily, which under Section 2 of the Employment Act, 2007 defines a casual employee. The wage paid, Ksh.572.00, was above the minimum daily wage and inclusive of house allowance. His employment therefore ended daily and no continuing relationship existed to terminate unfairly.

p. 2
02

Effect of NSSF payments on the employment relationship

Holding

NSSF contributions do not create or prove an employment relationship

Reasoning

The claimant relied on NSSF records to prove continuous employment, but he was simultaneously in full-time employment with another company which also made NSSF payments. The court held employment is a defined contractual relationship, not created by statutory contributions.

p. 2
03

Entitlement to leave, house allowance and holiday pay

Holding

Casual employees are not entitled to these benefits unless they work a full week

Reasoning

The court applied the principle that a casual employee earns an off day only after a full week of work. The records showed no continuous engagement beyond 5 days, so leave, house allowance and public holiday claims failed. NSSF payments were an additional benefit making total pay above the required level.

p. 2
04

Weight of employer's work records

Holding

The respondent's work records filed in advance and not objected to before hearing were adopted as the true records

Reasoning

The court held work records are the staple for any employer. Once filed, the employee may object before hearing and require further records. The claimant challenged the records only in cross-examination, having been served well in advance, so they were taken as the true attendance records.

p. 2

Legal principles established

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  • A casual employee is one paid at the end of each day and not engaged for longer than twenty-four hours at a time, and the employment ends with each day worked upon payment of the daily wage
  • Payment of NSSF dues does not of itself establish an employment relationship
  • Work records filed by an employer must be challenged before hearing; they cannot be faulted for the first time at the hearing stage

Court orders

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  1. 1.The claimant's claims for damages for unfair termination, notice pay, public holiday pay, leave and house allowance are dismissed
  2. 2.Costs to the respondent

Authorities

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Legislation

  • Employment ActSection 2 (definition of casual employee)
  • National Social Security Fund ActNot specified
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Cause filed under the ELRC's employment jurisdiction)

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, "Hezron Ombati Babu v Menengai Oil Refineries Limited [2019] KEELRC 1058 (KLR)", Case Analysis (2019). Cause No. 152 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1058/eng@2019-07-11

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