Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedELRC 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· [2020] KEELRC 1687 (KLR)

Jumaa Mangaro v China Jiangxi International Kenya Limited [2020] KEELRC 1687 (KLR)

Employment and Labour Relations Court
12 February 2020
1,995 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

#

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

#
This ELRC Malindi claim was heard as a test case, by consent recorded on 17th October 2019, whose outcome would apply to fifteen related causes against China Jiangxi International (K) Ltd. The Claimant, employed as a Carpenter from 2nd January 2015 to 6th January 2017, alleged unlawful termination, denial of rest days and annual leave, absence of a written contract and pay statement, and non-remittance of NSSF dues. The Respondent asserted he was a casual, project-based labourer who deserted duty from 28th December 2016. The court framed three issues: the nature of the employment; desertion versus unlawful termination; and entitlement to remedies. On the first issue, applying Section 2 of the Employment Act and Robai Musinzi, the court held the Claimant was a regular employee on term contract, relying on twice-monthly pay, a two-year project duration and the absence of a written contract. On the second issue, the court held that an employer alleging desertion must prove steps to trace the employee and issue notice before dismissal; the Respondent's unsubstantiated plea had no probative value, and the Claimant's participation in a return-to-work formula after the alleged desertion date contradicted it. Termination was held unlawful and unfair. The court awarded five months' salary as compensation (Kshs. 112,500), one month's notice pay (Kshs. 22,500), leave pay for two years (Kshs. 31,500), totaling Kshs. 166,500 with interest, plus outstanding NSSF remittances, a certificate of service, and costs to the Claimant. The judgment was directed to apply in all fifteen listed causes.

Key legal issues

#
01

Nature and status of the Claimant's employment

Holding

The Claimant was not a casual but a regular employee engaged on term contract.

Reasoning

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.

p. 3
02

Whether the Claimant deserted duty or was unlawfully terminated

Holding

The employment was unlawfully and unfairly terminated; the desertion plea failed.

Reasoning

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.

p. 3
03

Entitlement to remedies

Holding

Claimant awarded 5 months' compensation, one month's notice pay, leave pay for 2 years, outstanding NSSF remittances and a certificate of service.

Reasoning

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.

p. 3

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. 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. 2.Interest at court rates from the date of judgment until payment in full
  3. 3.Respondent directed to pay all outstanding NSSF dues on the Claimant's account up to December 2016
  4. 4.Respondent directed to issue the Claimant with a certificate of service
  5. 5.Claimant awarded costs of the case
  6. 6.Judgment to apply in the 15 listed test-case causes against China Jiangxi International (K) Ltd

Authorities

#

Legislation

  • Employment ActSection 2 (definition of casual employee)
  • Employment ActSection 10

Cases cited (5)

  • Robai Musinzi v Safdar Mohamed Khan
    [2012] eKLR
  • Seabolo v Belgravia Hotel
    (1997) 6 BLLR 829 (CCMA)
  • Stanley Omwoyo Onchweri v Board of Management Nakuru YMCA Secondary School
    [2015] eKLR
  • Dickson Matingi v Db Schenker Limited
    [2016] eKLR
  • Linus Nganga Kiongo & 3 others v Town Council of Kikuyu
    [2012] eKLR
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.