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ELRCPartially AllowedNot stated in the judgment (Memorandum of Claim dated 15th May 2013)· [2019] KEELRC 2504 (KLR)

Joseph Omondi Owino v Epco Builders Company Limited [2019] KEELRC 2504 (KLR)

Employment and Labour Relations Court
18 January 2019
MOMAUREEN ONYANGO
2,134 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled a 'casual' painter was actually permanent after two years of work, and his firing without a hearing was unfair.

What this practically means

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Executive summary

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The Claimant, a painter employed by the Respondent from October 2010 at a daily rate of Kshs.350, claimed he was summarily dismissed on 9th February 2013 by the manager, Mr. Ramji, on grounds of cost reduction, without a hearing, and without payment of terminal benefits. He sought a declaration of unfair termination, notice pay, leave pay and 12 months' compensation totalling Kshs.157,500, plus costs and interest. The Respondent denied dismissal, contending the Claimant committed gross misconduct by refusing instructions, threatening his supervisor and absconding, and that as a casual employee on daily wages his contract was terminable without notice. RW1, the Human Resource Manager, admitted having no leave records and no proof of disciplinary proceedings. The court framed two issues: whether the termination was unfair and whether the Claimant was entitled to the orders sought. Holding that the Claimant had been converted to a permanent employee after two years under Section 37(1)(a) of the Employment Act and was entitled to notice under Section 35(1)(c), the court found the termination unfair and unlawful because the Respondent afforded no opportunity to respond to charges. Applying Donald Odeke v Fidelity Security Ltd and guided by Yusuf A.K. Busienei v Canken International Ltd, the court awarded notice pay of Kshs.10,500, leave for 2 years (42 days) of Kshs.14,700, and compensation of 3 months' salary (Kshs.31,500), with costs to the Claimant and interest on the decretal sum from the date of judgment. The claim for 12 months' compensation was not granted in full.

Key legal issues

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01

Whether the Claimant's termination was unfair

Holding

Termination was unfair and unlawful; the Claimant had been converted to a permanent employee under Section 37(1)(a) and was entitled to notice under Section 35(1)(c), and no fair procedure was followed

Reasoning

The court found the Claimant, having worked 2 years, was deemed a permanent employee under Section 37(1)(a) of the Employment Act and entitled to notice under Section 35(1)(c). The Respondent failed to afford the Claimant an opportunity to respond to charges before action was taken, following Donald Odeke v Fidelity Security Ltd. No records of disciplinary process or leave were produced.

p. 3
02

Whether the Claimant was entitled to notice pay, leave and compensatory damages

Holding

Claimant entitled to notice pay, leave for 2 years, and 3 months' salary compensation

Reasoning

The court awarded notice pay computed at the daily rate, leave for 2 years (42 days) since the Respondent produced no leave records, and compensation of 3 months' salary guided by Yusuf A.K. Busienei v Canken International Ltd, considering circumstances of termination and length of service.

p. 3

Legal principles established

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  • An employee engaged as a casual who works continuously for a prolonged period is converted to a permanent employee under Section 37(1)(a) of the Employment Act
  • Termination without affording an employee adequate opportunity to respond to charges is unfair and unlawful

Court orders

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  1. 1.Payment of notice pay of Kshs.10,500 (350 x 3)
  2. 2.Payment of leave for 2 years (42 days) of Kshs.14,700
  3. 3.Compensation of Kshs.31,500 (3 months' salary)
  4. 4.Respondent to pay the claimant's costs of the suit
  5. 5.Decretal sum to attract interest at court rates from the date of judgment

Authorities

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Legislation

  • Employment ActSection 45
  • Employment ActSection 36
  • Employment ActSection 28
  • Employment ActSection 44(4)(a), (d) and (e)
  • Employment ActSection 35(1)(a)
  • Employment ActSection 37(1)(a)
  • Employment ActSection 35(1)(c)

Cases cited (7)

  • Kenya Union of Domestic, Hotels, Educational Institutions & Hospitals Workers -v- Mombasa Sports Club
    Cause No. 440 of 2013
  • Donald Odeke –v- Fidelity Security Ltd
    Cause No. 1998 of 2011
  • Jacob Joseph Onyango -vs- John Ndungu Mureithi & Anor
    (2015) eKLR, Cause No. 229 of 2014
  • Bamburi Cement Ltd —vs- William Kilonzi
    [2016] eKLR
  • John Nyamage -vs- Searite Holdings Ltd
    [2013] eKLR
  • Joseph Njoroge Kiama vs- Summer Limited
    (2014)
  • Yusuf A.K. Busienei -vs- Canken International Ltd
    (2018) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour relations claims (Constitution Article 162(2) as implied); no provision expressly cited

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, "Joseph Omondi Owino v Epco Builders Company Limited [2019] KEELRC 2504 (KLR)", Case Analysis (2019). Not stated in the judgment (Memorandum of Claim dated 15th May 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2504/eng@2019-01-18

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