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ELRCPartially AllowedNot stated in the judgment as reproduced· [2021] KEELRC 335 (KLR)

Nicholas Mwangangi Wambua v Samax Limited [2021] KEELRC 335 (KLR)

Employment and Labour Relations Court
4 November 2021
4,611 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The claimant sued Samax Limited for unfair dismissal and unpaid terminal benefits arising from an oral contract of employment commencing June 2010 at a weekly salary later rising to Kshs.12,000 per month, terminated on 3rd August 2015 allegedly for demanding overtime and transport allowances, upon which he was paid Kshs.48,000 and signed a discharge voucher. The respondent asserted the claimant was a casual employee engaged on a need basis, released due to harsh economic times, and that the signed casual salary voucher was a binding full and final settlement. The court framed four issues: the claimant's employment status, the admissibility of mpesa statements lacking a Section 106A/B Evidence Act certificate, the lawfulness of the termination, and entitlement to reliefs. The court found the claimant was a permanent employee, the casual engagement having converted under Section 37(1) of the Employment Act, aided by the respondent's own discharge voucher recording five years of service. The mpesa statements were admitted, the court invoking Section 20 of the Employment and Labour Relations Court Act to eschew technicalities and noting the objection was raised late. The termination was held unlawful for want of a valid reason and non-compliance with Section 40's redundancy procedure. The discharge voucher did not bar the claim as it was signed out of desperation and not mutually negotiated. The court awarded notice pay, underpayment, overtime, house allowance, service pay, annual leave and four months' compensation, totalling Kshs.368,568, less the Kshs.48,000 already paid, net Kshs.320,568, with costs and interest, and a certificate of service.

Key legal issues

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01

Status of employment - permanent or casual

Holding

The claimant was a permanent employee, not a casual labourer; any casual engagement had converted to permanent terms under Section 37(1) of the Employment Act.

Reasoning

The discharge voucher dated 10th August 2015 prepared by the respondent itself recorded that the claimant worked for 5 years, purportedly paying notice pay, service pay for 5 years and leave pay. Section 37 deems a casual employee engaged for continuous working days equivalent to one month or more to be employed on monthly terms. Following Esther Njeri Maina v Kenyatta University, casual employment cannot be indefinite; five years of continuous service rendered the relationship permanent.

p. 4
02

Admissibility of mpesa statements without a Section 106A/B certificate

Holding

The mpesa statements were admitted despite lacking a certificate under Sections 106A and B of the Evidence Act.

Reasoning

The court noted that the ELRC is not bound by the strict technicality of the Evidence Act because Section 20 of the Employment and Labour Relations Court Act requires it to act without undue regard to technicalities. The objection was also raised too late, only at submissions rather than before the close of pleadings, and the payment of monthly salary was otherwise unrebutted.

p. 4
03

Lawfulness of the termination

Holding

The termination was unlawful: no valid reason was proved and the procedure for redundancy under Section 40 was not followed.

Reasoning

The respondent asserted that the claimant's employment ended because business had gone down, which is a redundancy situation. Section 40 mandatorily requires notification in writing of the employee and the labour officer at least one month before termination on account of redundancy, together with reasons and extent. None of these steps was taken, and no termination letter or valid reason was proved.

p. 5
04

Effect of the discharge voucher signed on exit

Holding

The discharge voucher did not bar the claimant's claims because it was not freely and mutually negotiated.

Reasoning

The claimant testified he signed the voucher out of desperation, being told he would not be paid unless he signed. Following Thomas De La Rue and Bernard Juma Oyieyo, the court inquired into the circumstances of execution and found there was no agreement on the dues and the voucher omitted entitlements, so the claimant could claim reliefs in addition to the Kshs.48,000 received.

p. 5
05

Underpayment, house allowance, overtime, service pay and annual leave

Holding

The respondent, having failed to issue a written contract or keep records, is taken not to have paid house allowance or overtime, and the other reliefs were awarded as computed.

Reasoning

Sections 9 and 10 of the Employment Act oblige an employer to reduce a contract of three months or more to writing with particulars. In the absence of such records, there was no proof of consolidated wages or payment of house allowance. Following Joshua Lihanda v Outdoor Occasions, the burden of proving consolidation and payment lies on the employer.

p. 5

Legal principles established

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  • Casual employment that continues for a period equivalent to one month or more of continuous working days converts to employment payable monthly under Section 37 of the Employment Act.
  • A discharge voucher does not automatically preclude an employee from claiming further reliefs where it was not freely and mutually negotiated.
  • Termination on account of redundancy must strictly comply with Section 40 of the Employment Act, including written notification to the employee and the labour officer.
  • The burden of proving payment of consolidated wages inclusive of housing allowance lies on the employer who failed to provide a written contract.

Court orders

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  1. 1.One month salary in lieu of notice of Kshs.12,000/-
  2. 2.Underpayment of salary of Kshs.115,864/-
  3. 3.Overtime pay for 17 days of Kshs.6,800/-
  4. 4.Unpaid house allowance of Kshs.111,600/-
  5. 5.Service pay of Kshs.30,960/-
  6. 6.Annual leave of Kshs.43,344/-
  7. 7.Compensation for 4 months' equivalent salary of Kshs.48,000/-
  8. 8.Total of Kshs.368,568/- less Kshs.48,000/- already paid, leaving Kshs.320,568/- less any statutory deductions
  9. 9.Costs to the claimant and interest at court rates
  10. 10.Claimant to be given certificate of service immediately

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(d); Article 48
  • Employment Act, 2007Sections 9, 9(2), 10, 10(7), 28, 31, 31(2), 35(1)(c), 35(5) and (6), 37, 37(1)(a), 40, 41(1), 43, 51
  • Evidence ActSections 106A and 106B
  • Employment and Labour Relations Court ActSection 20
  • Civil Procedure RulesOrder 21 Rule 1
  • Employment and Labour Relations Court RulesNot specified
  • Regulation of Wages OrderVarious orders in force during the employment period

Cases cited (13)

  • Ruth Nyasuguta Areimba v Conference Caterers Limited
    [2021] eKLR
  • Joshua Lihanda v Outdoor Occasions Limited
    [2014] eKLR
  • Joab Ashitiba Hashon v Samaritan Medical Services
    [2017] eKLR
  • Thomas De La Rue (K) Ltd v David Opondo Omutelema
    [2013] eKLR
  • Bernard Juma Oyieyo v Karia Supermarket Limited
    [2018] eKLR
  • Peter Mwangi Maina v Equitor Bottlers Limited
    [2016] eKLR
  • Salma Yusuf Kassim v African Safari Destinations Limited
    [2021] eKLR
  • Esther Muthoni & Another v Joseph Mwangi Kirari
    [2019] eKLR
  • Pao & Others v Lau Yiu & Another
    [1979] 3 ALL E.R. 65
  • Wenslaus Oduki Odinga v Kenya National Hospital Board
    [2013] eKLR
  • James Karanja Mwangi v Timaflor Limited
    [2017] eKLR
  • Francis Mwangi Kimuri v Timaflor Limited
    [2018] eKLR
  • Esther Njeri Maina v Kenyatta University Limited
    Petition No.133 of 2018
Jurisdiction invoked
Employment and Labour Relations Court Act, Section 20; Article 159(2)(d) and Article 48 of the Constitution invoked in the COVID-19 delivery order

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Nicholas Mwangangi Wambua v Samax Limited [2021] KEELRC 335 (KLR)", Case Analysis (2021). Not stated in the judgment as reproduced. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/335/eng@2021-11-04

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