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ELRCDismissedConsolidated Causes 222 of 2018 – 231 of 2018· [2019] KEELRC 2235 (KLR)

Jackline Mumbi Murathimi & others v Highlands Mineral Water Limited [2019] KEELRC 2235 (KLR)

Employment and Labour Relations Court
18 February 2019
NMNzioki wa Makau
697 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed nine workers' dismissal claims because their variable piece-rate pay showed they were casual workers, not monthly employees entitled to notice.

What this practically means

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Executive summary

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Nine claimants (ten consolidated causes, ELRC Nyeri, Causes 222–231 of 2018) sued for unlawful dismissal, alleging they were terminated on 6th November 2017 by a text message from the Respondent's HR manager stating 'no job tomorrow', without notice or hearing. They were paid Kshs. 61/- per hour and sought notice pay, leave dues, service pay, compensation for unlawful dismissal, costs and interest. The Respondent did not enter appearance or file a defence, so the causes proceeded undefended. Jackline Mumbi Murathimi testified on behalf of all claimants, confirming termination by SMS without reasons and reliance on Section 41 of the Employment Act and the Wilfred Bukachi Opwaka v Ready Consultancy Company decision. The court examined their bank statements, which showed variable payments from a few hundred shillings to just over Kshs. 2,600, dependent on hours and days worked. It concluded the claimants were engaged in intermittent shift or piece-rate work rather than continuous monthly service, removing them from the Section 35 presumption and entitling them to no more than a day's notice under Section 37. The Opwaka authority was held inapplicable. All the claimants' suits were dismissed, with no order as to costs given that each suit was undefended. Judgment dated and delivered at Nyeri on 18th February 2019 by Nzioki wa Makau J.

Key legal issues

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01

Whether the Claimants were entitled to notice of termination under Sections 35 and 37 of the Employment Act

Holding

The Claimants were not entitled to notice beyond a day as their bank statements showed intermittent piece-rate payments inconsistent with continuous monthly service

Reasoning

The court examined the bank statements tendered by the Claimants, which showed varying payment amounts from a few hundred shillings to slightly over Kshs. 2,600, dependent on hours and days worked. This variability demonstrated that the Claimants were not in continuous monthly service. Their engagement was intermittent shift or piece-rate work, so the Section 35 presumption of a monthly contract did not apply and they could be told not to report the next day.

p. 2
02

Whether the Wilfred Bukachi Opwaka v Ready Consultancy Company authority applied to the Claimants' case

Holding

The court held the cited authority was not applicable on these facts

Reasoning

The Claimants relied on Opwaka, where Onyango J dealt with dismissal of casual employees who had worked continuously for more than one month. The court found that the evidence of intermittent, variable payments established that the Claimants were not continuous employees, so the ratio of Opwaka did not fit their circumstances.

p. 2

Legal principles established

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  • Casual or piece-rate workers engaged on intermittent shift work are not entitled to statutory notice of termination beyond a day and are not presumed to be on monthly contracts under Section 35 of the Employment Act

Court orders

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  1. 1.The Claimants' suits are all dismissed
  2. 2.No order as to costs in respect of all the suits

Authorities

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Legislation

  • Employment ActSection 35
  • Employment ActSection 37
  • Employment ActSection 41

Cases cited (1)

  • Wilfred Bukachi Opwaka v Ready Consultancy Company
    [2012] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (cause for unlawful termination of employment)

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, "Jackline Mumbi Murathimi & others v Highlands Mineral Water Limited [2019] KEELRC 2235 (KLR)", Case Analysis (2019). Consolidated Causes 222 of 2018 – 231 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2235/eng@2019-02-18

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