Justus Munyao Mulei v Comet Plastics Limited [2021] KEELRC 564 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was a casual worker or an employee under a contract of service
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.
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).
Whether the termination was fair and lawful
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.
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.
What reliefs the Claimant is entitled to
The Claimant was awarded notice pay, accrued leave, housing allowance, service pay, and 12 months' salary as compensation for unfair termination.
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.
Legal principles established
#- 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
#- 1.Compensatory damages of Kshs.168,000/-
- 2.Notice pay of Kshs. 14,000/-
- 3.Service pay of Kshs. 60,000/-
- 4.Accrued leave of Kshs. 87,500/-
- 5.Unpaid Housing allowance of Kshs. 210,000/-
- 6.The award in (a) to (e) is subject to statutory deductions
- 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.Issuance of certificate of service under section 51 of the Employment Act
- 9.Costs of the suit for the Claimant shall be borne by the Respondent
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment and labour relations claims (Employment Act, 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.