Denis Ngura Murigi v Epco Builders Company Limited [2020] KEELRC 1198 (KLR)
The bottom line
#A Kenyan court ruled that a casual welder who worked continuously for four years was a permanent employee, entitling him to compensation for unfair redundancy.
What this practically means
#Executive summary
#Key legal issues
#Whether casual employment converted to permanent employment
Having worked continuously for about 4 years, the claimant's casual employment converted to permanent employment as if he had not started as a casual employee.
The claimant testified he worked continuously from 8/04/2011 to 2/04/2015. The respondent, despite denying the employment relationship, produced no employment records to rebut this evidence and no records to prove habitual absenteeism. On a balance of probability the continuous service was proved, triggering the statutory deeming provision in section 37(1) of the Employment Act.
Whether the termination on account of redundancy was unfair
The redundancy was procedurally defective and amounted to unfair termination because no one month notice was served as required by section 40 of the Employment Act.
Section 40 mandates, in mandatory terms, at least one month written notice to the employee or trade union and the area labour officer before termination on account of redundancy. The respondent acknowledged the termination was on account of redundancy but produced no copy of any notice as an exhibit. The termination therefore fell foul of section 45 of the Act.
Entitlement to the reliefs sought
Only one month's salary in lieu of notice and three months' salary as compensation were awarded, assessed on the minimum wage; all other heads of claim failed for want of particulars and proof.
Compensation was anchored on section 49 of the Employment Act and computed at the minimum wage of Kshs. 470.60 per day under Legal Notice No. 197 of 1st May 2013 because the claimant did not demonstrate where a welder fell in the job grading. The leave, gratuity, off days, public holidays and underpayment claims all failed for lack of particulars, evidence and contractual or legal basis.
Legal principles established
#- Where a casual employee works continuously for over one month, the employment is deemed to convert to a permanent contract of service under section 37(1) of the Employment Act.
- Redundancy without the mandatory one month written notice to the employee and the area labour officer under section 40 of the Employment Act is an unfair termination under section 45.
Court orders
#- 1.Judgment entered for the claimant in the sum of Kshs. 56,472 comprising Kshs. 14,118 being one month's salary in lieu of notice and Kshs. 42,354 being compensation for unfair termination
- 2.The sum awarded is less statutory deductions but in addition to costs and interest at court rates from the date of judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance employment claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Denis Ngura Murigi v Epco Builders Company Limited [2020] KEELRC 1198 (KLR)", Case Analysis (2020). Cause No 1065 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1198/eng@2020-04-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.