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ELRCDismissedNot stated in the judgment· [2019] KEELRC 2285 (KLR)

Sammy Chege Ngari & 2 others v J. M. Muritu Construction [2019] KEELRC 2285 (KLR)

Employment and Labour Relations Court
15 February 2019
MOMAUREEN ONYANGO
1,368 words in judgment
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The bottom line

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Kenya's Employment Court dismissed three workers' claims because they couldn't prove who actually employed them, showing evidence matters more than years of work.

What this practically means

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Executive summary

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Three claimants sued the respondent, a business name owned by RW1, claiming unlawful summary dismissal from employment said to have commenced between 1990 and 2001 and ended on 24th September 2011. They sought public holiday pay, annual leave, service pay, house allowance, notice pay, salary balances at the minimum wage of a painter, damages for unlawful loss of employment and costs, contending they were never issued written contracts as required by section 9 of the Employment Act 2007 and that any casual employment should be converted under section 37(1). The respondent denied ever employing the claimants. RW1 testified that the claimants were hired by his foreman for construction projects lasting up to three months, with no work between tenders, and that his last project ended in 2007 following the 2007/2008 post-election skirmishes. At trial the claimants produced no appointment letters, gate passes or payment records; their petty cash vouchers and rent receipts did not link them to the respondent, and their accounts of commencement dates were contradictory. Relying on the Labour Institutions (Building and Construction Industry) (Wage) Order, which contemplates daily wages for tradesmen given the episodic nature of construction work, the court held there could be no presumption of conversion of employment under section 37(1). The claimants were found not to have proved their case, the claim was dismissed in its entirety, and each party was ordered to bear its own costs. The judgment was delivered at Nairobi on 15th February 2019 by Maureen Onyango, Judge.

Key legal issues

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01

Whether the Claimants were casual employees entitled to conversion to permanent employment under section 37(1) of the Employment Act

Holding

The claimants did not prove continuous employment by the respondent; the documents produced did not connect them to the respondent, and the nature of construction work negates a presumption of conversion

Reasoning

The court found no evidence of continuous or intermittent employment. The petty cash vouchers and rent receipts produced did not show issuance by or connection to the respondent. The Labour Institutions (Building and Construction Industry) (Wage) Order contemplates daily wages for tradesmen because construction work lasts only while the work is in progress, so conversion cannot be presumed.

p. 3
02

Whether the Claimants' employment was unlawfully and unfairly terminated and whether they are entitled to the reliefs sought

Holding

Having failed to establish the employment relationship, the claims for unfair termination and the associated reliefs fail

Reasoning

The claimants bore the burden of proving employment and its terms. Their own testimonies were inconsistent on dates of commencement, they lacked appointment letters, gate passes and pay records, and the respondent's owner admitted only that his foreman hired them for discrete projects of up to three months with gaps between tenders. Without proof of employment, the dismissal claims and all monetary reliefs could not stand.

p. 3

Legal principles established

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  • In the building and construction industry, daily-wage engagement is recognised as reflecting the episodic nature of construction work, so there can be no presumption of conversion of casual employment under section 37(1) of the Employment Act

Court orders

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  1. 1.The claimants' claim is dismissed
  2. 2.Each party shall bear its own costs

Authorities

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Legislation

  • Employment Actsection 9
  • Employment Actsection 35(1)(c)
  • Employment Actsection 37(1)
  • Employment Actsection 45(4)(b)
  • Labour Institutions (Building and Construction Industry) (Wage) OrderGeneral Tradesman (artisans) daily wages

Cases cited (1)

  • Nelson Ogeto Mogaka & 15 Others vs. Geothermal Development Company Limited
    [2014] eKLR
Jurisdiction invoked
Not expressly stated in the judgment

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Sammy Chege Ngari & 2 others v J. M. Muritu Construction [2019] KEELRC 2285 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2285/eng@2019-02-15

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