Nelson Maina v Kenyatta University [2019] KEELRC 1941 (KLR)
The bottom line
#Karatina University must pay a dismissed worker because continuous casual work automatically becomes formal employment under Kenyan law, and dismissal without notice or a hearing is unfair.
What this practically means
#Executive summary
#Key legal issues
#Conversion of casual employment to term contract
The Claimant's employment converted to a regular monthly term contract under section 37(1) and (3) of the Employment Act
The muster rolls showed the Claimant worked continuously every month from 2009 to 2016, sometimes on weekends and without leave. The memos exhibited by the Respondent were addressed to the Chief Finance Officer as authority to engage casuals, not contracts executed by the Claimant, who was unaware of them. Having worked continuously beyond one month, section 37 deemed his contract one with monthly wages, attracting section 35(1)(c).
Wrongful and unfair termination
The termination was unfair as the Claimant was neither given notice nor a hearing
An employer must prove a valid reason, a fair reason and fair procedure. The Claimant learned of his termination only through a WhatsApp message from a colleague, and the letter was not addressed to him. He was given no notice and no hearing prior to dismissal, so the termination was procedurally unfair and the Respondent, which called no evidence, did not justify it.
Effect of respondent failing to call evidence
The Claimant relied on authority that unchallenged evidence stands, but the court determined the matter on the pleadings, muster rolls and law
The Claimant cited Jamlick Muchangi Miano v Attorney General for the proposition that where a respondent calls no evidence the claimant's evidence remains unchallenged. The Respondent distinguished it, relying on Rule 21 of the ELRC (Procedure) Rules 2016 permitting determination on documentary evidence. The court nonetheless reached its findings on the documentary record and the Employment Act.
Legal principles established
#- Where a casual employee works continuously for the equivalent of not less than one month, the contract converts by operation of law to a monthly term contract under section 37 of the Employment Act
- A termination is unlawful unless the employer proves a valid and fair reason and a fair procedure including a hearing
Court orders
#- 1.One month's salary in lieu of notice – Kshs. 25,034/-
- 2.One month's salary in lieu of leave – Kshs. 25,034/-
- 3.Six months' salary compensation for unlawful and unfair termination – Kshs. 150,204/-
- 4.Costs of the suit
- 5.Certificate of service
- 6.Interest on the above awards from the date of judgment till payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act; ELRC (Procedure) Rules 2016)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nelson Maina v Kenyatta University [2019] KEELRC 1941 (KLR)", Case Analysis (2019). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1941/eng@2019-03-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.