Bakari Abdalla Mwangazi v Kwale International Sugar Company Limited [2020] KEELRC 661 (KLR)
The bottom line
#A Kenyan court ruled that employers must prove a worker was truly a casual labourer, and awarded unpaid leave pay, but the worker's contradictory evidence sank his bigger claims.
What this practically means
#Executive summary
#Key legal issues
#Nature and status of the Claimant's employment - casual or term contract
The Respondent's assertion that the Claimant was a casual employee was unproved and rejected.
The Respondent's pleadings and witness statement were internally inconsistent (monthly salary of Kshs. 5,100 versus a daily wage of Kshs. 210). The supervisor who managed and paid the casuals was not called as a witness and no casual employment records were produced. Section 37 of the Employment Act on conversion of casual employment exists to guard against exploitation of employees on verbal contracts. The casual-employee assertion therefore failed.
Whether the Claimant proved unlawful termination
The Claimant failed to establish unlawful termination; compensation and notice pay claims disallowed.
Under Section 47(5) of the Employment Act, the burden of proving unfair termination rests on the employee. The Claimant gave December 2016 in the Memorandum of Claim but 22nd September 2015 in his witness statement, with no explanation for the contradiction. An employee who cannot tell the date of termination has not discharged the evidential burden. The Respondent also denied terminating the employment.
Entitlement to leave pay
The Claimant is entitled to leave pay, awarded for two years in the sum of Kshs. 8,820.
The Respondent's witness said the Claimant never went on leave because he was a casual. Having rejected the casual-employee status, the Court held the Claimant entitled to leave pay, but limited the award to two years rather than the entire period of employment claimed, entering judgment for Kshs. 8,820 with interest.
Claim for salary underpayment
Dismissed as not proved.
The Claimant alleged his salary was below the statutory minimum wage throughout, claiming Kshs. 190,078.30 in underpayment, but the claim was not proved. The Respondent maintained the salary accorded with the applicable minimum wage in the Agricultural Industry, and the Court found the underpayment claim unproved and dismissed it.
Legal principles established
#- An employer asserting that an employee was a casual labourer must prove that assertion; where the supervisor who managed and paid the employee is not called and no casual employment records are produced, the assertion fails and the employee is not a casual employee.
- Once the casual-employee averment is debunked, an employee who did not go on leave is entitled to leave pay.
- An employee who cannot tell the date of the termination complained of has not discharged the evidential burden under Section 47(5) of the Employment Act.
Court orders
#- 1.Judgment entered in favour of the Claimant in the sum of Kshs. 8,820 being leave pay for two (2) years
- 2.Interest on that amount at court rates from the date of judgment until payment in full
- 3.Claimant awarded the costs of the case
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act; claim filed under the Memorandum of Claim procedure)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bakari Abdalla Mwangazi v Kwale International Sugar Company Limited [2020] KEELRC 661 (KLR)", Case Analysis (2020). Employment and Labour Relations Court Claim dated 10th May 2017 (Machakos). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/661/eng@2020-05-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.