Peter Wambani v Bethuel Ndung’u t/a Maji Pump Ventures [2020] KEELRC 977 (KLR)
The bottom line
#A Kenyan court dismissed a driver's unfair termination claim because his own payment records proved he was a casual, piece-rate worker, not a permanent employee.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there was unlawful and unfair termination of employment
- 2.Whether the remedies sought should issue
Key legal issues
#Whether the claimant was employed as a driver as alleged
The claimant failed to prove he was employed as a driver; his driving licence was a first issuance dated 24th May, 2016, negating the assertion of employment as a driver from 2014
The claimant asserted he was employed as a driver on 31st July, 2014, yet the licence produced was issued on 24th May, 2016 and did not reflect a re-issue of a lost licence. His explanation of a lost licence re-issued in 2016 was unsupported by evidence. The daily payments recorded through mpesa and cash, ranging from Ksh.327 to Ksh.10,100, did not reflect a monthly wage of Ksh.16,000, supporting the defence that he worked on and off on casual, piece-rate terms.
Whether the claimant was a casual employee on piece-rate terms
Yes; the payment records showed work on not more than 10 days per month, crediting the defence of on-and-off casual engagement
The claimant's own mpesa and cash transaction records showed varied daily payments and months with no payments, indicating he was not at work daily. The court found the respondent secured plumbing jobs and sourced the claimant on availability of work at piece rates, consistent with casual employment under section 2 of the Employment Act and the authorities cited.
Whether there was unlawful and unfair termination of employment
No; the claim of unfair termination had no legal foundation as the claimant did not prove continuous employment as a driver
Under section 47(5) of the Employment Act the employee bears the burden of proving unfair termination. Having found the claimant was a casual employee sourced per day and paid at the end of each day, with no evidence of a monthly wage of Ksh.16,000 or continuous service, the court held the claim of unlawful and unfair termination lacked legal foundation and dismissed it.
Legal principles established
#- The burden of proving unfair termination rests on the employee, while the burden of justifying the grounds of termination rests on the employer
- Casual employment is a legitimate mode of employment recognised in law
- Piece rate employment is permissible in law and allows an employer to allocate work as and when available
Court orders
#- 1.The claims made against the respondent are dismissed
- 2.Costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment cause)
Relief refused
#Compensation for unfair termination (Ksh.235,848.90)
No unfair termination established; claimant was a casual employee
Notice pay
Not due to a casual employee
Underpayments, off days, overtime, public holidays, annual leave, severance/service pay and certificate of service
Remedies not available due to the nature of casual employment
Costs
Costs to the respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The claims made against the respondent are without justification and are hereby dismissed. Costs to the respondent.
Accordingly, the claim that there was unlawful and unfair termination of employment has no legal foundation.
Casual employment is therefore provided for in law and hence a legitimate mode of employment.
This then negates the assertion that the claimant was employed as a driver as alleged.
Issues in the judgment
#The judgment inconsistently states the claimant's date of employment as 31st July, 2014 in the claim but May, 2014 in the summary of the claimant's case
Recurring typographical errors in the judgment, e.g. 'causal' for 'casual' and 'driver a canter lorry' for 'drive a canter lorry'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Wambani v Bethuel Ndung’u t/a Maji Pump Ventures [2020] KEELRC 977 (KLR)", Case Analysis (2020). Cause No. 418 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/977/eng@2020-06-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.