Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedEmployment and Labour Relations Court at Nairobi, memorandum of claim dated 16th February 2016· [2021] KEELRC 54 (KLR)

Kenneth Kamau Kaigua v Giloil Company Limited [2021] KEELRC 54 (KLR)

Employment and Labour Relations Court
14 December 2021
NMNzioki wa Makau
2,058 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

#

The Employment Court dismissed a worker's unfair termination claim because he could not prove continuous employment, confirming piece rate workers have fewer statutory entitlements.

What this practically means

#

Executive summary

#
The Claimant sued the Respondent seeking relief for alleged unlawful and unfair termination, claiming he was employed from May 2005 as a casual labourer and later as a Turn Boy earning Kshs. 12,840/- per month, and that in April 2015 he was told to leave and never return. He sought one month's pay in lieu of notice, house allowance for the entire employment, leave pay for ten years, twelve months' damages for wrongful dismissal, severance pay, and costs. The Respondent denied the claim, asserting the Claimant was engaged intermittently on piece work contracts as a loader from December 2005, paid per assignment, and that such contracts end daily and attract no leave, severance, notice or damages entitlements, citing Sections 2 and 18 of the Employment Act. At trial both parties testified and filed submissions. The Claimant argued his employment had converted under Section 37 of the Employment Act and that no reason or procedure attended the termination, relying on Walter Ogal Anuro and Anthony Mkala Chitavi. The Respondent relied on Krystalline Salt Limited v Kwekwe Mwakele and BOC Kenya Limited v Amos Manoa Erastus. The court found the Claimant's own letters described him as a casual labourer and the turn boy position as vacant, he could not identify the vehicle assigned to him, and the casual work registers showed only intermittent service. He failed to prove continuous employment entitling conversion or unfair termination. The claim was dismissed with no order as to costs.

Key legal issues

#
01

Nature of the Claimant's employment

Holding

The Claimant failed to prove continuous employment entitling conversion; the evidence, including the casual work registers and his own letter, showed intermittent piece rate work

Reasoning

The court found the Claimant's own correspondence referred to him as a casual labourer and described the turn boy position as vacant, contradicting his claim that he was a turn boy. He could not identify the vehicle assigned to him. The Respondent's casual work registers showed intermittent service. He therefore failed to discharge the burden of proving continuous work exceeding a month as required for conversion under Section 37 of the Employment Act.

p. 3
02

Whether termination was wrongful and unfair

Holding

The claim of unfair termination failed because the employment relationship was piece rate work pegged on availability of work, and the claimant did not prove the alleged continuous employment

Reasoning

The court accepted the Respondent's position that the Claimant's engagement depended on availability of loading/off-loading work. Having failed to establish conversion or continuity, the procedural fairness arguments under Sections 35, 43 and 45 did not avail him. The claim was accordingly found unproved and dismissed.

p. 3

Legal principles established

#
  • A claimant bears the burden of proving that his employment converted to more favourable terms under Section 37 of the Employment Act
  • Piece rate work is a lawful form of employment under the Employment Act and piece rate workers are treated per that contract type

Court orders

#
  1. 1.The claim is dismissed
  2. 2.No order as to costs

Authorities

#

Legislation

  • Employment ActSections 2 and 18
  • Employment ActSection 37
  • Employment ActSections 35, 43 and 45
  • Employment ActSection 45(2)

Cases cited (5)

  • Humphrey Owino Omondi v Vishnu Builders Limited
    [2016] eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
  • Anthony Mkala Chitavi v Malindi Water & Sewerage Company Ltd
    [2013] KLR
  • Krystalline Salt Limited v Kwekwe Mwakele & 67 Others
    [2017] eKLR
  • BOC Kenya Limited v Amos Manoa Erastus
    [2017] eKLR
Jurisdiction invoked
Article 162(2)(a) of the Constitution (Employment and Labour Relations Court jurisdiction)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

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, "Kenneth Kamau Kaigua v Giloil Company Limited [2021] KEELRC 54 (KLR)", Case Analysis (2021). Employment and Labour Relations Court at Nairobi, memorandum of claim dated 16th February 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/54/eng@2021-12-14

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