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ELRCDismissedCause No 332 of 2017· [2021] KEELRC 938 (KLR)

Sylvester Musangi Mutua v Wire Products Limited [2021] KEELRC 938 (KLR)

Employment and Labour Relations Court
24 September 2021
2,730 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 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 Wire Products Limited alleging unlawful termination of employment on 20th May 2015 after 13 years of service, seeking declarations that his dismissal was unlawful, unfair and inhumane, terminal dues of Kshs 1,040,256/=, compensatory damages, interest and costs. The respondent's defence was that the claimant was a casual employee engaged occasionally depending on availability of work and raw materials. Two witnesses testified for each side. The respondent produced attendance records titled 'Casual payments' showing the claimant worked on intermittent days in the weld mesh and cutting section, while the claimant produced no contract, pay slip or contemporaneous documents; his Sacco receipts and NSSF statement did not bear the respondent's name. The court framed two issues: the nature of the employment relationship and the reliefs available. It found the claimant had failed to discharge the burden of proving a continuous employment relationship and held he was a casual employee within section 2 of the Employment Act. Following Josphat Njuguna v High Rise Self Group, the court held that irregular payment intervals did not convert the claimant into a permanent employee, and section 37(1) was inapplicable as he had not worked continuously for 30 days. All reliefs were refused: no notice pay under section 35(1)(a), no damages for unlawful termination, and no leave, service pay, house allowance, off days or holiday pay. The claim was dismissed in its entirety with each party bearing its own costs. Judgment was delivered remotely pursuant to COVID-19 directives.

Key legal issues

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01

Nature of the employment relationship

Holding

The claimant was a casual employee, not a permanent or term employee; section 37(1) of the Employment Act was not triggered as he did not work continuously for 30 days

Reasoning

The respondent's attendance records titled 'Casual payments' showed the claimant's name on some days but not others, confirming occasional work. The claimant produced no contract or pay slip; his Sacco receipts and NSSF statement did not evidence an employment relationship with the respondent. Payment weekly or after 11 days did not convert the engagement, per Josphat Njuguna v High Rise Self Group.

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02

Reliefs available to the claimant

Holding

None of the reliefs sought were available given the casual nature of the employment

Reasoning

Having found the claimant was a casual employee, the court held that no notice was required prior to termination under Section 35(1)(a); no damages for unlawful termination were payable as unlawful termination was not proved; and no documentary basis existed for leave, service pay, house allowance, off days or holiday pay.

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Legal principles established

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  • A casual employee who is not paid at the end of each day and who is hired for more than 24 hours does not automatically become a permanent employee
  • The burden of proving the existence of an employment relationship rests on the claimant

Court orders

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  1. 1.Dismissal of the claim in its entirety
  2. 2.Each party to bear its own costs
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act over employment disputes

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, "Sylvester Musangi Mutua v Wire Products Limited [2021] KEELRC 938 (KLR)", Case Analysis (2021). Cause No 332 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/938/eng@2021-09-24

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