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ELRCPartially AllowedCause No 1199 of 2012· [2020] KEELRC 1840 (KLR)

Jackson Mulei Nyamai v Simon Kingori t/a Roadside/Farmers Centre (Animal Feeds) [2020] KEELRC 1840 (KLR)

Employment and Labour Relations Court
24 January 2020
MOMaureen Onyango
2,460 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled a night guard was not a casual worker and awarded him Kshs.661,723 after his employer dismissed him without notice or a hearing.

What this practically means

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Executive summary

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The Claimant, employed as a night guard, sued for a declaration that his termination was unlawful and unfair, terminal benefits of Kshs.695,599.15 (notice pay, leave, house allowance, overtime, public holidays, service gratuity, off duty, underpayment), 12 months' compensation, a certificate of service, costs and interest. He testified he was summarily dismissed on 4th May 2012 after arriving 15 minutes late, without notice or a hearing. The Respondent contended the Claimant was a casual watchman engaged in February 2008 who absconded duty repeatedly, and argued the repealed Employment Act applied, relying on Kenya Revenue Authority vs. Festus Kipkorir. The court framed four issues: applicable law, casual status, unfair termination, and reliefs. It held the Employment Act, 2007 applied since the claimant worked to 2012; that continuous work beyond 30 days converted the engagement into a regular contract under Section 37(1), with the burden on the employer for failing to produce records under Section 10(6) and (7); and that the respondent's own admission - telling the claimant to leave - amounted to summary dismissal without notice or hearing, hence unfair under Section 45(1) and (2). Statutory minimum wages and house allowance were read into the contract under Sections 3(6), 26 of the Employment Act and Section 48(1) of the Labour Institutions Act, yielding underpayments of Kshs.138,825. The court awarded leave pay, notice pay, service pay, overtime and 6 months' compensation under Section 49(4), totalling Kshs.661,723, plus a certificate of service, costs and interest from judgment. The claim substantially succeeded, though compensation was halved from that sought.

Key legal issues

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01

The applicable law

Holding

The Employment Act, 2007 applied since the claimant worked up to 2012

Reasoning

The respondent argued that the repealed Employment Act governed because the claimant was engaged in 2008, but the court held that the operative date is the period of work, which extended to 2012. The Employment Act, 2007 therefore governed the employment relationship and the claim.

p. 3
02

Whether the Claimant was a casual employee

Holding

The claimant was not a casual; his employment had converted to a regular contract under Section 37(1)

Reasoning

The respondent admitted engaging the claimant from 2008 but intermittently, and failed to produce employment records as required by Sections 10(6) and 10(7). Evidence that a replacement stood in for the claimant during absences showed continuous work exceeding 30 days, converting the engagement into a regular contract of service.

p. 3
03

Whether the termination was unfair

Holding

The termination was unfair; the claimant was summarily dismissed without notice or a hearing

Reasoning

Although the respondent asserted the claimant absconded, he conceded in evidence that he told the claimant to leave and never issued any letter for absconding duty. The court found this amounted to summary dismissal without notice and without a disciplinary hearing, contrary to Section 45(1) and (2) of the Employment Act, 2007.

p. 3
04

Entitlement to reliefs

Holding

The claimant was awarded underpayments, leave pay, overtime, notice pay, service pay and 6 months' compensation; the court declined to compute overtime at the full statutory formula

Reasoning

Reading statutory minimum wages into the contract, the court computed underpayments of basic wage and house allowance at Kshs.138,825. Leave for 4 years, notice pay, service pay and overtime for public holidays and off duty were awarded. Although the court's own workings under the Regulation of Wages (General) Order would have yielded more, it awarded the sums as prayed. Compensation was limited to 6 months' salary under Section 49(4).

p. 4

Legal principles established

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  • Continuous employment beyond 30 days converts a casual engagement into a regular contract of service under Section 37(1) of the Employment Act
  • Where an employer fails to produce a written contract or written particulars as required by Section 10(6) and (7) of the Employment Act, the burden of proving or disproving an alleged term of employment falls on the employer
  • Employment contracts on terms inferior to statutory minimums are illegal, null and void, and the court reads statutory minimum terms into the contract
  • Summary dismissal without notice and without a disciplinary hearing is unfair termination under Section 45(1) and (2) of the Employment Act

Court orders

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  1. 1.Award to the Claimant of a total sum of Kshs.661,723/= comprising underpayment of basic wage and house allowance (Kshs.138,825), leave for 4 years (Kshs.31,445), normal overtime (Kshs.243,646), public holidays and off duty (Kshs.157,215), pay in lieu of notice (Kshs.9,733), service pay (Kshs.22,460.80) and 6 months' salary as compensation for unfair termination (Kshs.58,398)
  2. 2.The Respondent shall issue a certificate of service to the Claimant
  3. 3.The Respondent to pay the Claimant's costs of the suit
  4. 4.Interest to accrue at court rates from the date of judgment

Authorities

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Legislation

  • Employment Act, 2007Sections 3(6), 10(6), 10(7), 26, 35(6), 37(1), 41, 45(1) and (2), 48(1), 49(4), 51
  • Labour Institutions ActSection 48(1)
  • Regulation of Wages (General) Order, 2006Rule 6 (overtime)

Cases cited (1)

  • Kenya Revenue Authority vs. Festus Kipkorir
    Civil Appeal No. 1 of 2004
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (claim for unfair termination and terminal dues)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Jackson Mulei Nyamai v Simon Kingori t/a Roadside/Farmers Centre (Animal Feeds) [2020] KEELRC 1840 (KLR)", Case Analysis (2020). Cause No 1199 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1840/eng@2020-01-24

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