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ELRCDismissedNot stated in judgment· [2019] KEELRC 2221 (KLR)

Mwinyi Ali Kabungu Babaya v Steel Makers Limited [2019] KEELRC 2221 (KLR)

Employment and Labour Relations Court
21 February 2019
LNLINNET NDOLO
1,004 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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An employee lost his unfair termination claim in Mombasa because he could not prove he was still employed when the termination happened.

What this practically means

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Executive summary

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This was an employment claim by Mwinyi Ali Kabungu Babaya against Steel Makers Limited before the Employment and Labour Relations Court at Mombasa. The Claimant, employed as a Machine Operator from January 2008 at a daily rate of Kshs. 485, alleged that in December 2014 the Respondent's Works Manager told him there was no more work, escorted him to the gate and barred his re-entry, without reason. He sought notice pay, seven years' leave pay, service pay, twelve months' salary as compensation, plus costs and interest. The Respondent denied a continuous six-year employment, contending the Claimant was a casual employee engaged day to day depending on availability of production materials, that it merely declined to engage him in December 2014 for lack of materials, and that it remitted NSSF contributions. The court framed two issues: whether the Claimant proved unlawful termination, and whether he was entitled to the remedies sought. Holding that the case did not turn on conversion of casual employment under Section 37(1) of the Employment Act but on proof under Section 47(5), the court noted the Claimant's NSSF statement ended in June 2014 and did not cover December 2014, the month of the alleged termination. Failing proof of an employment relationship on the accrual date, the claim collapsed. All heads of claim were dismissed, and each party was ordered to bear its own costs.

Key legal issues

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01

Whether the Claimant proved unlawful termination of employment

Holding

Claim failed; the Claimant did not adduce crucial evidence of an employment relationship at the time of alleged termination

Reasoning

The court held the case did not turn on conversion of casual employment but on proof of unfair termination under Section 47(5). The Claimant's NSSF statement ended in June 2014 and did not cover December 2014, the month of alleged termination. Without evidence of an ongoing employment relationship on the accrual date, the claim for unlawful termination could not stand.

p. 2
02

Whether the Claimant was entitled to notice pay, leave pay, service pay and compensation

Holding

All heads of claim dismissed

Reasoning

Service pay failed because the Respondent remitted NSSF dues for periods worked. Leave pay for 7 years lacked basis given the Claimant's admission he did not work throughout. Notice pay and compensation failed with the unfair termination claim since no employment relationship was proved for December 2014.

p. 2

Legal principles established

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  • The burden of proving unfair termination rests on the employee while the burden of justifying the grounds for termination rests on the employer
  • A claim for unlawful termination presupposes the existence of an employment relationship on the accrual date, which the employee must prove

Court orders

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  1. 1.The Claimant's entire claim is dismissed
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Employment Act, 2007Section 37(1)
  • Employment Act, 2007Section 47(5)

Cases cited (4)

  • Nasoro Omar Mohammed v Kwale National Sugar Co. Ltd
    [2017] eKLR
  • Wilfred Bukachi Opwaka v Ready Consultancy Company Limited
    [2012] eKLR
  • Simeiyo Martin Mumachi & 3 others v Steel Makers Ltd
    [2017] eKLR
  • Persteeno Omondi v Steel Makers Ltd
    [2017] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes

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, "Mwinyi Ali Kabungu Babaya v Steel Makers Limited [2019] KEELRC 2221 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2221/eng@2019-02-21

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