Jumaa Mangaro v China Jiangxi International Kenya Limited [2020] KEELRC 1687 (KLR)
The bottom line
#Kenya's Employment Court ruled that workers paid twice monthly on long projects are regular employees, and employers claiming desertion must prove they tried to trace the worker.
What this practically means
#Executive summary
#Key legal issues
#Nature and status of the Claimant's employment
The Claimant was not a casual but a regular employee engaged on term contract.
Section 2 of the Employment Act defines a casual employee as one paid at the end of each day and not engaged for longer than 24 hours at a time. The Claimant was paid twice monthly, worked on a project lasting over two years, and was not given a written contract. Applying Robai Musinzi, the court interpreted the undocumented terms and found regular term-contract employment.
Whether the Claimant deserted duty or was unlawfully terminated
The employment was unlawfully and unfairly terminated; the desertion plea failed.
An employer alleging desertion must lay a basis and show steps to trace the employee, and must issue notice before dismissal. The Respondent offered no evidence supporting desertion. Further, the Claimant's involvement in a return-to-work formula after the alleged desertion date showed he was still in employment.
Entitlement to remedies
Claimant awarded 5 months' compensation, one month's notice pay, leave pay for 2 years, outstanding NSSF remittances and a certificate of service.
Compensation was assessed at 5 months considering length of service and the Respondent's conduct. Leave pay succeeded absent leave records; NSSF claim succeeded on an uncontested statement showing incomplete remittances.
Legal principles established
#- Where an employer fails to document the employment relationship as required under Section 10 of the Employment Act, it is left to the Court to interpret the terms and conditions of employment.
- Not every absence from duty amounts to desertion; an employer alleging desertion must show steps taken to trace the employee and must issue notice before dismissal on that ground.
- Pleadings not supported by evidence have no probative value.
Court orders
#- 1.Judgment entered in favour of the Claimant for Kshs. 166,500 (5 months' salary compensation Kshs. 112,500; 1 month's salary in lieu of notice Kshs. 22,500; leave pay for 2 years Kshs. 31,500)
- 2.Interest at court rates from the date of judgment until payment in full
- 3.Respondent directed to pay all outstanding NSSF dues on the Claimant's account up to December 2016
- 4.Respondent directed to issue the Claimant with a certificate of service
- 5.Claimant awarded costs of the case
- 6.Judgment to apply in the 15 listed test-case causes against China Jiangxi International (K) Ltd
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (heard as a test case by consent recorded on 17th October 2019)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jumaa Mangaro v China Jiangxi International Kenya Limited [2020] KEELRC 1687 (KLR)", Case Analysis (2020). ELRC Cause (Malindi) - test case for Causes No 30, 31, 32, 35, 36, 37, 38, 39, 40, 79, 80, 81, 82, 83 and 84 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1687/eng@2020-02-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.