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ELRCDismissedHigh Court Civil Case No. 429 of 2003 (consolidated with High Court Civil Case No. 297 of 2008)· [2019] KEELRC 2367 (KLR)

Julius Arisi & 90 others v Research International East Africa Limited [2019] KEELRC 2367 (KLR)

Employment and Labour Relations Court
18 January 2019
MOMaureen Onyango
3,671 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court dismissed 214 workers' claims because the old pre-2007 law let employers terminate with notice alone, and the workers couldn't prove their benefit claims.

What this practically means

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Executive summary

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The 1st Claimant, Julius Arisi, sued for himself and 213 others alleging breach of the Employment Act and their contracts of employment by the Respondent, a market research company, in failing to pay terminal benefits including overtime, leave, maternity leave, medical and house allowance and severance pay, and sought a mandatory order against termination. The dispute arose in 2003 when the Respondent issued standard letters of employment which most employees refused to sign, demanding their benefits first; those who declined were terminated on 12th May 2003. The suit, originally filed in 2003 and consolidated in 2009 with a fresh 2008 suit by 89 of the Claimants, proceeded to full trial. The Claimants asserted they were permanent employees of 1-20 years' continuous service; the Respondent maintained they were casuals hired project by project. The court framed four issues: the status of the employees, the lawfulness of the terminations, breach of contract, and entitlement to reliefs. Applying the repealed Employment Act (Cap 226), the court held the Claimants worked beyond 24 hours at a time and were not casuals, but that Kenyan law recognises no 'permanent employment' concept and the repealed Act had no conversion provision akin to section 37 of the Employment Act 2007. Pre-2007, an employer needed no reason and no hearing to terminate, only notice. All heads of relief failed: leave, public holidays and overtime were unproved; house allowance was consolidated in the daily wage; severance pay applies only to redundancy. The entire claim was dismissed with each party bearing its own costs.

Key legal issues

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01

Whether long service converted the Claimants from casuals to permanent employees

Holding

It did not; the repealed Act had no provision equivalent to section 37 of the Employment Act 2007 and imposed no limit on how long one could serve on casual terms

Reasoning

The repealed Employment Act defined a casual as one paid at the end of each day and engaged for not more than 24 hours at a time. Since the Claimants worked longer than 24 hours at a time, they were not casuals, but the Act did not recognise 'permanent employee' status and had no conversion provision. Length of service therefore did not confer permanent and pensionable status.

p. 4
02

Whether the terminations were wrongful and unlawful

Holding

The terminations were lawful because under the pre-2007 law the employer had no obligation to give reasons or observe natural justice, only to give notice

Reasoning

The applicable law was the repealed Employment Act (1976), which did not provide for unfair termination. Termination was at the pleasure of the employer subject to notice or pay in lieu. The Respondent gave 7 days' notice and the reason (refusal to sign new contracts affecting business) could not be faulted as no reason was required.

p. 5
03

Entitlement to the tabulated monetary reliefs

Holding

None of the heads of relief were payable; claims failed for want of proof or as a matter of law

Reasoning

Annual leave, public holidays and overtime failed for want of documentation, and the Respondent's records showed overtime was paid. House allowance was consolidated in the daily wage under the Regulation of Wages (General) Order. Severance pay was inapplicable as there was no redundancy.

p. 5

Legal principles established

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  • Under the repealed Employment Act (Cap 226), a casual employee is one paid at the end of each day and not engaged for longer than twenty-four hours at a time; service beyond that means the employee is not a casual
  • There is no concept of permanent employment in Kenyan law; all contracts have a termination clause express or implied
  • Before the Employment Act 2007, an employer could dismiss for a bad reason, a good reason, or no reason at all, provided notice or pay in lieu was given

Court orders

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  1. 1.The entire claim is dismissed for want of proof
  2. 2.Each party shall bear its own costs

Authorities

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Legislation

  • Employment Act, Cap 226 (repealed)section 2; section 5; section 9; section 16
  • Employment Act, 2007section 37; section 41
  • Regulation of Wages and Conditions of Employment Act (General) Orderhouse allowance consolidation
  • Regulation of Wages Order of 2002 and 2003consolidation of daily wage with house allowance

Cases cited (4)

  • Kenya Union of Commercial Food & Allied Workers vs Hebatulla Brothers Limited
    (2002) eKLR
  • Kenya Revenue Authority Vs Menginya Salim Murgain
    (2010) eKLR
  • Francis N. Gachuri -V- Energy Regulatory Commission
    (2013) eKLR
  • Anthony Mkala Chitavi v Malindi Water & Sewerage Company Ltd
    [2013] eKLR
Jurisdiction invoked
Original employment and labour relations claim; suit commenced in the High Court on 12th May 2003 and consolidated with Civil Case No. 297 of 2008

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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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, "Julius Arisi & 90 others v Research International East Africa Limited [2019] KEELRC 2367 (KLR)", Case Analysis (2019). High Court Civil Case No. 429 of 2003 (consolidated with High Court Civil Case No. 297 of 2008). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2367/eng@2019-01-18

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