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ELRCDismissedNot stated in the excerpt (Statement of Claim filed 26th September 2016)· [2019] KEELRC 1883 (KLR)

Bakari Ali Mbega v Kwale International Sugar Company [2019] KEELRC 1883 (KLR)

Employment and Labour Relations Court
27 March 2019
JRJames Rika
1,279 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Claimant sued his former employer, a sugar company, claiming one month's salary in lieu of notice, seven years' annual leave pay, public holiday pay (later withdrawn), and twelve months' salary as compensation for allegedly unfair termination, together with a declaration that his termination was unfair, costs and interest. He averred he was employed on 1st September 2008 as a Field Assistant/Supervisor, that wage delays began around July 2015, that he was kept out of the workplace by police officers hired by the Respondent, and that on 20th February 2016 his contract was formally terminated without notice, hearing or reasons, contrary to Sections 41, 43 and 45 of the Employment Act 2007. The Respondent, whose sugarcane operations are seasonal, responded that the Claimant was a casual worker engaged per season, paid Kshs. 350 daily for days worked, who left on his own volition in February 2016. In evidence, the Claimant conceded he was in casual employment, was paid for days worked at a daily rate, chose when to attend, and that work depended on the season. The court found consensus that the Claimant was a casual worker; the seasonal nature of sugarcane operations did not call for regular employment or conversion of terms under Section 37 of the Employment Act. Mutuality of obligations lasted no more than 24 hours at a time. The authority relied on by the Claimant was distinguished because that Grievant worked in continuity in a role central throughout the employer's operations. The court rejected the entire claim and made no order on costs.

Key legal issues

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01

Nature of the employment relationship - casual versus regular employment

Holding

The Claimant was a casual worker engaged seasonally; his terms did not require conversion to regular employment under Section 37 of the Employment Act 2007

Reasoning

Both parties' evidence converged: the Claimant was paid Kshs. 350 per day worked, chose when to attend, worked season-dependent hours in the sugarcane business, and did not work in continuity. The nature of sugarcane operations did not call for regular employment or conversion of casual terms. Mutuality of obligations lasted only 24 hours at a time.

p. 3
02

Whether termination was unfair under Sections 41, 43 and 45 of the Employment Act 2007

Holding

No unfair termination arose because the casual relationship attracted no statutory termination protections; the Claimant ceased attendance of his own volition

Reasoning

The Respondent did not formally terminate the contract; the Claimant opted not to return to work after February 2016. Since the Claimant was a casual worker whose presence or absence was at his own discretion, the Respondent could not be saddled with employment liability attaching to regular employees. The formal termination letter of 20th February 2016 therefore carried no unfairness consequences.

p. 2
03

Distinguishability of the authority relied on by the Claimant

Holding

The KPAWU v KALRO decision was distinguished because that Grievant worked continuously in a central role, unlike the seasonal Claimant

Reasoning

The court contrasted the Grievant in the cited case, a Plumber whose role was central throughout and who established continuous work, with the Claimant, a self-acknowledged casual farmhand engaged per planting and harvesting seasons. The precedent was therefore inapplicable to the facts.

p. 3

Legal principles established

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  • Where work is seasonal and the worker's engagement is casual, with mutuality of obligations limited to each day worked, the statutory protections available to regular employees under the Employment Act do not attach

Court orders

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  1. 1.The Claim is rejected
  2. 2.No order on the costs

Authorities

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Legislation

  • Employment Act 2007Sections 41, 43, 45
  • Employment Act 2007Section 37 and Section 37[4]

Cases cited (1)

  • Kenya Plantation and Agricultural Workers Union v Kenya Agricultural & Livestock Research Organization
    [2016] e-KLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes under the Employment Act 2007

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, "Bakari Ali Mbega v Kwale International Sugar Company [2019] KEELRC 1883 (KLR)", Case Analysis (2019). Not stated in the excerpt (Statement of Claim filed 26th September 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1883/eng@2019-03-27

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