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ELRCPartially AllowedCause No 393 of 2017· [2019] KEELRC 1414 (KLR)

Miraj Bakari, Ali Nzembe & 24 others v Doshi Enterprises Limited [2019] KEELRC 1414 (KLR)

Employment and Labour Relations Court
13 June 2019
JRJames Rika
2,346 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Long-serving Kenyan workers locked out by a notice board won one month's notice pay, but their bigger redundancy and leave claims failed for lack of evidence.

What this practically means

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Executive summary

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This first-instance Employment and Labour Relations Court decision at Mombasa was delivered by James Rika, Judge, on 13th June 2019 in an old claim filed in the High Court Mombasa in 2004 and transferred to the ELRC in 2017. Twenty-five Claimants, employed by the Respondent as labourers between 1981 and 1999, alleged that on 24th April 2004 they were locked out of the workplace without notice or hearing and denied terminal dues. They sought a total of Kshs. 6,180,658 across heads of annual leave, severance pay, off-duty days and public holidays worked, and one month's salary in lieu of notice, plus a declaration that termination was wrongful. The Respondent pleaded that the claim was time-barred and that the Claimants were casual employees terminable at the end of each day without notice. Three Claimants testified; the Respondent failed to call its witnesses after an unmerited adjournment request. The Court held that termination occurred under the pre-2007 Employment Act, under which employment was at the will of the employer and no hearing was statutorily required; the Claimants had not invoked the Trade Disputes Act Cap 234, which carried fairness provisions. However, having served 11 to 23 years, the Claimants were no longer casuals but regular employees. Severance pay failed because the termination notice did not mention redundancy; off-duty and public holiday pay failed for lack of evidence; annual leave pay failed because there was no material showing entitlement to 30 days' leave. The Court awarded only notice pay of Kshs. 6,231 per Claimant (total Kshs. 155,775), with costs to the Claimants and interest at 14% per annum from 24th April 2004 until payment in full.

Key legal issues

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01

Status of the Claimants: casual or regular employees

Holding

By reason of their long service, the Claimants had become regular employees, not casuals

Reasoning

The Claimants worked for between 11 and 23 years, albeit with breaks when the galvanizing machine was under maintenance. Their roles, clearing paint from pipes, were integral to the Respondent's business and could not properly be discharged by temporary labour. Length of aggregate service converted casual employment into regular employment.

p. 7
02

Procedural fairness at termination under the old Employment Act

Holding

The law in place at termination did not oblige the employer to hear the employees; employment was at the will of the employer, and the Claimants did not invoke the Trade Disputes Act which provided for fairness

Reasoning

Termination occurred under the old Employment Act preceding the 2007 Act. The Claimants did not cite any law obligating the employer to hear them before termination. The Trade Disputes Act Cap 234, which had provisions for substantive and procedural fairness for unionisable employees, was not invoked.

p. 7
03

Notice/notice pay on termination

Holding

Despite the employer's general freedom to terminate, the abrupt notice-board lockout warranted notice pay

Reasoning

The notice of 24th April 2004 was abrupt and placed on the notice board, locking the Claimants out and terminating their contracts. Having been found to be regular employees of long service, they merited notice or notice pay of one month's salary.

p. 7
04

Severance pay for redundancy

Holding

Not established; the termination notice did not mention redundancy

Reasoning

The notice dated 24th April 2004 merely informed the Claimants and three other employees (28 in all) that they would not be allowed in the factory from that date. It did not refer to a redundancy situation, so the prayer for severance pay failed.

p. 7

Legal principles established

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  • Employees who have worked for an aggregate of many years cannot be treated as casual employees and ought to be considered regular employees
  • Under the pre-2007 Employment Act, an employer could terminate employment for just cause, bad cause or no cause - employment was at the will of the employer
  • An abrupt notice of termination placed on a notice board, locking employees out, does not amount to notice, and employees merited notice pay

Court orders

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  1. 1.The Respondent shall pay to each Claimant notice at Kshs. 6,231 - total Kshs. 155,775
  2. 2.Costs to the Claimants
  3. 3.Interest allowed on notice pay at 14% per annum, from the date of termination - 24th April 2004 - till payment is made in full

Authorities

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Legislation

  • Employment Actold Act preceding the Employment Act 2007
  • Employment Act2007
  • Trade Disputes Act Cap 234 Laws of Kenyanot specified
Jurisdiction invoked
Jurisdiction of the Employment and Labour Relations Court following transfer of the Claim from the High Court Mombasa (no specific provision cited)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Miraj Bakari, Ali Nzembe & 24 others v Doshi Enterprises Limited [2019] KEELRC 1414 (KLR)", Case Analysis (2019). Cause No 393 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1414/eng@2019-06-13

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