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ELRCPartially AllowedNot stated in the judgment as provided· [2019] KEELRC 1941 (KLR)

Nelson Maina v Kenyatta University [2019] KEELRC 1941 (KLR)

Employment and Labour Relations Court
25 March 2019
1,928 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Claimant sued the Respondent university for wrongful and unfair termination of employment and non-payment of annual leave, alleging he worked continuously as a cashier, storekeeper and weigh bridge attendant from November 2006 until February 2017, earning about Kshs. 25,034 monthly, without a written contract, leave, or notice or reasons for dismissal, learning of his termination through a WhatsApp message. The Respondent maintained he was an intermittent casual labourer engaged on three-month contracts, the last running from 19 December 2016 and lapsing in February 2017. At hearing the Claimant testified; the Respondent called no witnesses. The court framed three issues: conversion of casual employment, fairness of termination, and remedies. Applying section 37 of the Employment Act and Kenya Plantation & Agricultural Workers' Union v Keen Kleeners Limited, the court found the muster rolls showed continuous monthly work from 2009 to 2016, and the Respondent's memos were internal authority to engage casuals, not contracts given to the Claimant; his employment therefore converted by operation of law to a monthly term contract. On fairness, the court held a termination is unlawful absent proof of valid reason, fair reason and fair procedure, and the Claimant received neither notice nor a hearing. The suit was allowed in part: one month's salary in lieu of notice, one month in lieu of leave, six months' compensation for unfair termination, costs, a certificate of service, and interest; the ten-year leave claim was limited to one year as a continuing wrong.

Key legal issues

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01

Conversion of casual employment to term contract

Holding

The Claimant's employment converted to a regular monthly term contract under section 37(1) and (3) of the Employment Act

Reasoning

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).

p. 2
02

Wrongful and unfair termination

Holding

The termination was unfair as the Claimant was neither given notice nor a hearing

Reasoning

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.

p. 2
03

Effect of respondent failing to call evidence

Holding

The Claimant relied on authority that unchallenged evidence stands, but the court determined the matter on the pleadings, muster rolls and law

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.One month's salary in lieu of notice – Kshs. 25,034/-
  2. 2.One month's salary in lieu of leave – Kshs. 25,034/-
  3. 3.Six months' salary compensation for unlawful and unfair termination – Kshs. 150,204/-
  4. 4.Costs of the suit
  5. 5.Certificate of service
  6. 6.Interest on the above awards from the date of judgment till payment in full

Authorities

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Legislation

  • Employment ActSection 2 (definition of casual employee)
  • Employment ActSection 37 (Conversion of casual employment to term contract)
  • Employment ActSection 35(1)(c)
  • Employment and Labour Relations Court (Procedure) Rules 2016Rule 21

Cases cited (4)

  • Jamlick Muchangi Miano v Attorney General
    [2017] eKLR
  • John Otieno Uyoma & 3 Others v Chemartin Tea Co. Ltd
    [2018] eKLR
  • Kenya Plantation & Agricultural Workers’ Union v Keen Kleeners Limited
    [2014] eKLR
  • Rashid Mazuri Ramadhani & 10 Others v Doshi & Company (Hardware) Limited & Another
    [2018] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act; ELRC (Procedure) Rules 2016)

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, "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.