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ELRCPartially AllowedCause No 680 of 2016· [2021] KEELRC 932 (KLR)

Peter Wabucheri Wanjala v Dimamu Agencies Limited [2021] KEELRC 932 (KLR)

Employment and Labour Relations Court
30 September 2021
CBChristine N. Baari
1,936 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that a worker paid daily wages for nearly four years was not a casual employee, and firing him without notice, reasons or a hearing was unfair.

What this practically means

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Executive summary

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The Claimant sued the Respondent alleging that he was employed on 6 August 2012 as a loader on a daily wage of Kshs. 410 and that on 30 July 2015 the Respondent's manager verbally told him his services were no longer required, without notice, hearing or reasons. He sought a declaration that his termination was unfair, terminal dues of Kshs. 356,644 (notice pay, unpaid leave, service pay, public holidays, off days and underpayment), costs and interest. The Respondent denied terminating him, asserting he was a casual employee who voluntarily left employment on 24 August 2015 after disagreements over loading excess cement, and that warning letters had been issued over that habit. The Respondent called no witnesses. The court framed two issues: whether the termination was unfair and unjust, and whether the remedies sought were deserved. It held that although the Claimant was paid daily wages, he had served for close to four years and was therefore not a casual employee, so sections 41, 43 and 45 of the Employment Act applied. The Respondent neither conducted a disciplinary process, gave the Claimant a hearing, nor proffered reasons; the employer bore the burden of demonstrating procedural fairness and failed it. The termination was found substantively and procedurally unfair. The court awarded eight months' salary as compensation (Kshs. 98,400) and one month's salary in lieu of notice, but dismissed the claims for unpaid leave, service pay, public holidays, off days and underpayment for want of proof. Costs of the suit were awarded to the Claimant, and the file was to be transmitted back to Nairobi.

Key legal issues

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01

Whether the Claimant was a casual employee

Holding

Despite being paid a daily wage, the Claimant served for close to four years and was therefore not a casual employee.

Reasoning

Payment of daily wages connotes casual service under the Employment Act, but the Act defines casual engagement as not exceeding twenty-four hours at a time. The Claimant worked for the Respondent from 6 August 2012 to 30 July 2015, far beyond that period, so he fell outside the definition and was entitled to statutory protection.

p. 3
02

Whether the termination was unfair and unjustified

Holding

The termination was substantively and procedurally unfair for lack of notice, hearing and valid reasons.

Reasoning

The Respondent did not take the Claimant through any disciplinary process, gave him no opportunity to make representations and proffered no reasons for termination. Sections 41, 43 and 45 of the Employment Act require procedural and substantive fairness, and the employer bears the burden of demonstrating compliance. The process failed the fairness test.

p. 3
03

Whether the Claimant proved the terminal dues claimed

Holding

Only notice pay was proved; the other heads failed for want of proof.

Reasoning

The Claimant bore the burden of proving the claims for unpaid leave, service pay, public holidays, off days and underpayment. He adduced no evidence in support of these heads, so they were dismissed, while the claim for one month's salary in lieu of notice was found merited and awarded.

p. 3

Legal principles established

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  • An employee paid at the end of each day but engaged for longer than twenty-four hours at a time is not a casual employee.
  • The employer bears the burden of demonstrating adherence to procedural fairness under sections 41, 43 and 45 of the Employment Act when terminating employment.

Court orders

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  1. 1.The Respondent to pay the Claimant 8 months' salary in compensation for unfair termination in the sum of Kshs 98,400
  2. 2.One month's salary in lieu of notice at Kshs. 12,500/= (410X30 days)
  3. 3.Costs of the suit
  4. 4.The Deputy Registrar to transmit this file back to Nairobi after the delivery of this Judgment

Authorities

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Legislation

  • Employment Act, 2007Section 45(1) and (2)
  • Employment Act, 2007Sections 36, 28, 35(5) and 10(3)
  • Employment Act, 2007Sections 41, 43 and 45
  • Constitution of KenyaArticles 41 and 47

Cases cited (7)

  • Walter Ogal Anuro v Teachers Service Commission
    (2013) eKLR
  • Pamela Nelima Lutta v Mumias Sugar Co. Ltd
    (2017) eKLR
  • Fancy Jeruto Cherop & Another v Hotel Cathy Limited
    (2018) eKLR
  • Elijar Kipkoros Tonui v. Ngari Opticians T/A Bright Eyes Limited
    (2014) eKLR
  • Kenya Union of Commercial Food & Allied Workers vs Hebatulla Brothers Limited
    (2002) eKLR
  • Anthony Mkala Chitavi v Malindi Water & Sewerage Company Ltd
    [2013] eKLR
  • Loice Otieno V Kenya Commercial Bank Ltd
    [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the 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, "Peter Wabucheri Wanjala v Dimamu Agencies Limited [2021] KEELRC 932 (KLR)", Case Analysis (2021). Cause No 680 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/932/eng@2021-09-30

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