Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedNot stated in the judgment (filed 30/09/2015)· [2020] KEELRC 1189 (KLR)

Angeline Musali Mutua v Vegpro (K) Ltd [2020] KEELRC 1189 (KLR)

Employment and Labour Relations Court
29 April 2020
OMOnesmus N. Makau
2,028 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

A Kenyan court dismissed an unfair dismissal claim because the worker couldn't prove continuous employment beyond a month and didn't plead her case properly.

What this practically means

#

Executive summary

#
The claimant sued on 30 September 2015 alleging she was employed by the respondent as a casual employee from 2001 until 10 December 2014, when she was verbally dismissed after objecting to being moved to a cold room. She sought a declaration of wrongful and unfair dismissal, unpaid dues of Kshs 242,450, one month's notice pay, twelve months' salary as compensation under section 49(1)(c) of the Employment Act, and punitive and aggravated damages for breach of constitutional rights. The respondent admitted casual employment but asserted it was intermittent on need basis, that wages were paid daily, and that the claimant deserted work on 10 December 2014. The court framed three issues: conversion of casual employment to regular terms, desertion versus wrongful dismissal, and entitlement to reliefs. Applying section 37 of the Employment Act and the Rapid Kate Services decision of the Court of Appeal, the court found the claimant had failed to prove continuous service aggregating more than one month, so no conversion occurred; further, conversion was never pleaded, and the court held it could not go beyond the pleadings, citing the Mutinda Mule decision. On the second issue, the burden lay on the claimant, who produced no witness to the alleged verbal dismissal; the court found she deserted work. Consequently, as a casual employee terminable without notice at the end of each day under section 35(1)(a), she was not entitled to the reliefs claimed, and her constitutional rights claim was unproved. The suit was dismissed with costs on 29 April 2020.

Key legal issues

#
01

Conversion of casual employment to regular terms

Holding

Conversion was refused — claimant failed to prove continuous service beyond one month and did not plead conversion

Reasoning

Section 37 confers jurisdiction to convert casual employment where the employee proves continuous work for over one month. The court relied on the Rapid Kate Services precedent requiring proof of both casual employment and aggregated service exceeding one month. The claimant did not discharge this burden, and additionally, the claim for conversion was never pleaded, so the court declined to order it.

p. 3
02

Desertion versus verbal dismissal

Holding

The claimant deserted work from 10/12/2014; no unlawful dismissal was proved

Reasoning

The burden lay on the claimant to prove she attended work on 10/12/2014 and was verbally dismissed. She adduced no witness to the alleged dismissal. The respondent's attendance records, though lacking letterhead or stamp, stood unrebutted by any evidence of payment at the end of each day or contemporaneous records supporting the claimant.

p. 3
03

Entitlement to reliefs

Holding

All reliefs were refused because the reliefs attach only to regular employees

Reasoning

Having found the claimant remained a casual employee, the reliefs of notice pay, service pay, leave and compensation for unfair termination are benefits available only to employees in continuous regular service. The constitutional rights claim was also unproved. The suit was accordingly dismissed in its entirety with costs.

p. 3

Legal principles established

#
  • Casual employment converts to a regular terms contract of service under section 37 of the Employment Act only where the employee proves continuous service for more than one month
  • A court cannot grant relief not founded on the pleadings; it is bound by the parties' pleadings
  • Casual employment is terminable by either party without notice at the close of each day under section 35(1)(a) of the Employment Act

Court orders

#
  1. 1.Dismissal of the claimant's suit
  2. 2.The claimant shall pay the respondent's costs

Authorities

#

Legislation

  • Employment Actsection 2
  • Employment Actsection 35(1)(a)
  • Employment Actsection 37
  • Employment Actsection 41
  • Employment Actsection 49(1)(c)

Cases cited (5)

  • Joab Ashitiba Hashon v Samaritan Medical Services
    [2017] eKLR
  • Rapid Kate Services Limited V John Mutisya & 2 Others
    [2018] eKLR
  • Abdul Shakoor Sheik v Abdul Majied Sheikh and 2 others
    LLR No.2219(CAK)
  • Captain Harry Grandy v Caspar Air Charters Limited
    Civil Appeal [1956] 23EACA139
  • Independent Electoral and Boundaries Commision & another v Stephen Mutinda Mule & 3 others
    [2014] eKLR
Jurisdiction invoked
Employment Act, section 37 (jurisdiction to convert casual employment to regular terms contract of service)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (2)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Angeline Musali Mutua v Vegpro (K) Ltd [2020] KEELRC 1189 (KLR)", Case Analysis (2020). Not stated in the judgment (filed 30/09/2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1189/eng@2020-04-29

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