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ELRCPartially AllowedMemorandum of Claim dated 26th January 2016, filed 1st February 2016· [2021] KEELRC 564 (KLR)

Justus Munyao Mulei v Comet Plastics Limited [2021] KEELRC 564 (KLR)

Employment and Labour Relations Court
2 November 2021
4,399 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Claimant, Justus Munyao Mulei, sued the Respondent claiming that his dismissal from employment was unlawful, unfair and inhumane, and sought terminal dues of Kshs. 562,333.30, interest, and costs. He testified he was employed as a store keeper in 2007 at Kshs. 3,500 per week and was ordered to leave upon presenting his NSSF card, without reasons or a hearing. The Respondent, through two witnesses (a General Manager and a director), denied employing him as a store keeper, contending he was a casual engaged for piece-work off-loading, paid per sack by vouchers, and that he absconded rather than being terminated. The court framed three issues: the nature of the engagement, the fairness of the termination, and entitlement to reliefs. It found that the Respondent failed to produce employment records, so the Claimant's account of continuous employment from 2007 to 2015 at weekly pay was accepted. Applying section 37 of the Employment Act, the court held the casual engagement had converted into a contract of service, noting the trust shown in entrusting the Claimant with cash to pay other casuals. The termination, without notice or hearing, was held unfair and unlawful under sections 41 and 45. The court awarded notice pay (Kshs. 14,000), accrued leave (Kshs. 87,500), housing allowance (Kshs. 210,000), service pay (Kshs. 60,000), and 12 months' salary as compensation (Kshs. 168,000), all subject to statutory deductions, plus interest, a certificate of service under section 51, and costs to the Claimant.

Key legal issues

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01

Whether the Claimant was a casual worker or an employee under a contract of service

Holding

The Claimant's casual engagement, having lasted continuously from 2007 to 2015 with weekly wages, converted by operation of section 37 of the Employment Act into a contract of service with an employer-employee relationship.

Reasoning

The court found the Claimant worked for the Respondent from 2007 to 2015, was entrusted with cash to pay other casuals, and was paid weekly. The Respondent failed to produce employment records, so the Claimant's account of continuous employment and weekly pay of Kshs. 3,500 was taken as the truth. Applying section 37(1), continuous work exceeding one month deems the casual contract a monthly contract under section 35(1)(c).

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02

Whether the termination was fair and lawful

Holding

The termination was unfair and unlawful because the Claimant was dismissed without notice or hearing as required by sections 41 and 45 of the Employment Act.

Reasoning

Having found an employer-employee relationship, the Respondent's submissions on casual-contract terminability became irrelevant. The Claimant testified he was ordered to leave upon presenting his NSSF card; the Respondent said he absconded and was replaced. Either way, no notice or disciplinary hearing was given, contravening sections 41 and 45, rendering the dismissal unfair.

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03

What reliefs the Claimant is entitled to

Holding

The Claimant was awarded notice pay, accrued leave, housing allowance, service pay, and 12 months' salary as compensation for unfair termination.

Reasoning

The court computed notice pay of one month (Kshs. 14,000), accrued leave for 8 years and 4 months (Kshs. 87,500), housing allowance at 15% of gross salary (Kshs. 210,000), service pay of 15 days per complete year (Kshs. 60,000), and compensation of 12 months' salary (Kshs. 168,000), considering length of service, oppressive terms, and lack of subsequent suitable employment.

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Legal principles established

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  • Where an employer fails to produce employment records for the entire period of employment, the employee's claim of continuous employment and wages is taken as the truth.
  • Under section 37 of the Employment Act, casual employment converts to a monthly contract of service where the casual has worked an aggregate of not less than one month.
  • Termination of an employee without notice or hearing is unfair and unlawful under sections 41 and 45 of the Employment Act.

Court orders

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  1. 1.Compensatory damages of Kshs.168,000/-
  2. 2.Notice pay of Kshs. 14,000/-
  3. 3.Service pay of Kshs. 60,000/-
  4. 4.Accrued leave of Kshs. 87,500/-
  5. 5.Unpaid Housing allowance of Kshs. 210,000/-
  6. 6.The award in (a) to (e) is subject to statutory deductions
  7. 7.Interest on the awarded sum at court rates from the date of judgment if the full amount is not paid within 30 days of the judgment
  8. 8.Issuance of certificate of service under section 51 of the Employment Act
  9. 9.Costs of the suit for the Claimant shall be borne by the Respondent

Authorities

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Legislation

  • Employment Act of 2007Section 2 (definition of casual employee)
  • Employment Act of 2007Section 37 (conversion of casual employment to term contract)
  • Employment Act of 2007Section 35(1)(c) and section 35(1)(a)
  • Employment Act of 2007Section 36 (notice)
  • Employment Act of 2007Section 41 and section 45 (fair procedure and unfair termination)
  • Employment Act of 2007Section 28 (annual leave)
  • Employment Act of 2007Section 31 (housing allowance)
  • Employment Act of 2007Section 51 (certificate of service)

Cases cited (3)

  • Peter Maundu Malonza v Frigoken Limited
    (2020) eKLR
  • Rapid Kate Services Limited v John
  • Donald Odeke v Fidelity Security Ltd
    Cause No. 1998 of 2011
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour relations claims (Employment Act, 2007)

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, "Justus Munyao Mulei v Comet Plastics Limited [2021] KEELRC 564 (KLR)", Case Analysis (2021). Memorandum of Claim dated 26th January 2016, filed 1st February 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/564/eng@2021-11-02

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