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ELRCPartially AllowedEmployment Cause (Nairobi), Memorandum of Claim dated 23/09/2015 (Amended 07/01/2016)· [2020] KEELRC 738 (KLR)

Edward Munene Kanyi v Kenyatta University [2020] KEELRC 738 (KLR)

Employment and Labour Relations Court
9 July 2020
HWHellen Wasilwa
3,298 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled Kenyatta University wrongly treated a long-serving worker as casual, awarding him Kshs. 650,520 for unfair termination without notice or hearing.

What this practically means

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Executive summary

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The Claimant, Edward Munene Kanyi, sued Kenyatta University for unfair termination of employment, claiming he was employed on 8 October 2009 as a Machine Operator/Library Assistant and orally terminated in March 2015 without notice or hearing, claiming Kshs. 2,166,725 in terminal dues. The Respondent denied the claim, contending he was a casual employee engaged per shift rotas, paid daily, and terminable without notice. Agreed issues were framed around whether the Claimant was a casual employee, whether written notice was required and whether he was entitled to terminal benefits. The Claimant relied on NSSF remittances, monthly bank payments, an internal transfer memo and shift records; the Respondent relied on the Court of Appeal decision in Rashid Mazuri Ramadhani v Doshi and the Allogoh line of cases on section 37 of the Employment Act. The court found NSSF remittances were made continuously from 2011 to 2014 and salary was paid monthly, and held that the Claimant's employment converted from casual to permanent and pensionable under section 37 of the Employment Act. It further held that the oral termination without notice or hearing was unfair and unjustified under section 45(2) of the Act. The court awarded one month's notice pay, ten months' compensation for unfair termination, service pay for four years and house allowance limited to three years as the balance was time barred, totalling Kshs. 650,520, plus costs and interest. Other heads of claim, including commuter allowance and NSSF dues, were not awarded.

Key legal issues

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01

Whether the Claimant's casual employment was converted into a term contract under section 37 of the Employment Act

Holding

Yes - continuous service from 2011 to 2015 with monthly salary payments and NSSF remittances converted the casual engagement into permanent and pensionable employment

Reasoning

The court noted NSSF remittances made continuously from 2011 to 2014 and erratically to March 2015 by Kenyatta University, and monthly bank payments from 2013 to 2014. Although the Respondent treated the Claimant as a casual worker on shift rotas, the length of continuous service and the manner of payment brought the contract within section 37 of the Employment Act, deeming it one with monthly wages.

p. 4
02

Whether the termination of the Claimant's employment was fair and justified

Holding

No - the termination was oral, without notice and without a hearing, and therefore unfair and unjustified under section 45(2) of the Employment Act

Reasoning

Having found the Claimant's employment had converted, the court held he should have been terminated after due notice and with valid reasons. No hearing was given before the HR Manager directed termination for gross misconduct following the internal audit, breaching section 41 and rendering the dismissal unfair under section 45(2).

p. 4
03

What remedies were payable

Holding

Notice pay, 10 months' compensation for unfair termination, service pay for 4 years and house allowance limited to 3 years, totalling Kshs. 650,520

Reasoning

The court awarded one month's salary in lieu of notice, ten months' salary as compensation for unlawful and unfair termination, service pay calculated at 15 days' salary per year worked (2011–2015) and house allowance for 26 months, holding the balance of the house allowance claim time barred.

p. 5

Legal principles established

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  • A casual employee who has worked continuously for an extended period with monthly salary payments and NSSF contributions has a contract deemed converted to monthly terms under section 37 of the Employment Act
  • Termination effected orally, without notice and without a hearing is unfair and unjustified under section 45(2) of the Employment Act

Court orders

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  1. 1.One month's salary in lieu of notice of Kshs. 25,020
  2. 2.Ten months' salary as compensation for unlawful and unfair termination (Kshs. 250,200)
  3. 3.Service pay equivalent to 15 days' salary for each of 4 years worked (2011–2015) of Kshs. 50,040
  4. 4.House allowance for 3 years (the rest of the claim being time barred) of Kshs. 325,260
  5. 5.Total award of Kshs. 650,520
  6. 6.Respondent to pay costs of the suit plus interest at court rates from the date of judgment

Authorities

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Legislation

  • Employment ActSection 37(1), (3), (4)
  • Employment ActSection 36
  • Employment ActSection 35(1)(a), 35(5), 35(1)(c)
  • Employment ActSection 28(1)(a)
  • Employment ActSection 31(1)
  • Employment ActSection 41
  • Employment ActSection 45(2)
  • Employment ActSection 47(5)

Cases cited (5)

  • Antony Musyoka Musembi vs. Nairobi Ironmongers Limited
    ELRC at Nairobi Cause No. 660 of 2015
  • Peter Wambugu Kariuki and 16 others Vs. Kenya Agricultural Research Institute
    Petition 2 of 2013
  • Rashid Mazuri Ramadhani & 10 others vs. Doshi & Company (Hardware) Limited & another
    [2018] eKLR
  • Rashid Odhiambo Allogoh & 245 others vs. Haco Industries Limited
    [2015] eKLR
  • Josphat Njuguna v High Rise Self Group
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (unfair termination claim)

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, "Edward Munene Kanyi v Kenyatta University [2020] KEELRC 738 (KLR)", Case Analysis (2020). Employment Cause (Nairobi), Memorandum of Claim dated 23/09/2015 (Amended 07/01/2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/738/eng@2020-07-09

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