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ELRCPartially AllowedNot stated in the judgment· [2019] KEELRC 1271 (KLR)

David Mutua Mathuku v Pembe Flour Mills Limited [2019] KEELRC 1271 (KLR)

Employment and Labour Relations Court
5 July 2019
RSRadido Stephen
893 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Claimant sued the Respondent in September 2014 for non-payment of employee dues and wrongful, unfair and unlawful dismissal. The Respondent defended the suit on the basis that the termination occurred during a probationary period for unsatisfactory performance and that terminal dues were paid. The Cause was heard on 26 March 2019, with the Claimant and the Respondent's Human Resources Officer testifying; only the Claimant filed submissions. On the nature of employment, the Court found the Respondent had failed to produce employment records to support its assertion of daily-paid casual engagement, and a March 2014 pay slip showed a monthly salary. Relying on section 37 of the Employment Act, 2007, the Court held the Claimant was on a term contract from December 2012 to May 2014. On termination, the Court held that placing the Claimant on probation in April 2014 while he continued performing duties he had carried out for about two years was an unfair labour practice and no defence to an unfair termination claim. The Respondent, relying on unsatisfactory performance, led no evidence of agreed targets or the nature of underperformance, and so failed to discharge the burden under sections 43 and 45 of proving valid and fair reasons for termination. The Court awarded compensation equivalent to three months' gross wages (Kshs 51,666/-), but declined pay in lieu of notice (already paid) and accrued leave (shown paid in the terminal dues schedule). The Respondent was ordered to issue a certificate of service within 15 days, and the Claimant was awarded costs. Judgment delivered on 5 July 2019 in Nairobi by Radido Stephen, Judge.

Key legal issues

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01

Nature of employment (casual vs term contract)

Holding

The Claimant was on a term contract from December 2012 to May 2014 under section 37 of the Employment Act

Reasoning

The Respondent, custodian of employment records, failed to produce records proving daily payment as alleged for casual engagement. The Claimant's March 2014 pay slip showed a monthly salary, and he served continuously for over 3 months, engaging sections 9(1)(b), 10 and 37 of the Employment Act.

p. 1
02

Unfair termination of employment

Holding

The termination was unfair; the Respondent failed to prove valid and fair reasons

Reasoning

Placing the Claimant on probation while he performed the same duties he had held for about two years was an unfair labour practice and no shield against an unfair termination claim. The employer led no evidence of agreed performance targets or of the nature of underperformance, failing the sections 43 and 45 burden.

p. 2
03

Compensation for unfair termination

Holding

Compensation assessed at 3 months gross wages (Kshs 51,666/-)

Reasoning

In considering length of service of about 2 years, the Court exercised discretion under the Employment Act to award compensation equivalent to 3 months' gross wages of Kshs 17,222/-.

p. 2

Legal principles established

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  • A casual employee is one paid at the end of each day and engaged for not longer than 24 hours; an employee served for over 3 months is deemed on a term contract under section 37 of the Employment Act
  • Employers bear the burden under sections 43 and 45 of the Employment Act of proving valid and fair reasons for termination

Court orders

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  1. 1.Declaration that the Claimant was on term contract up to May 2014 and that the termination of the contract was unfair
  2. 2.Award of compensation equivalent to 3 months gross wages, Kshs 51,666/-
  3. 3.Respondent to issue a Certificate of Service within 15 days
  4. 4.Claimant to have costs of the Cause
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (cause for unfair termination and non-payment of dues)

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, "David Mutua Mathuku v Pembe Flour Mills Limited [2019] KEELRC 1271 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1271/eng@2019-07-05

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