Joseph Maina Mwangi v Gathare Bar Hotel & Boarding House [2021] KEELRC 1424 (KLR)
The bottom line
#A Kenyan court ruled that a watchman employed casually for seven years was legally a permanent employee, so his dismissal without notice or a hearing was unfair.
What this practically means
#Executive summary
#Key legal issues
#Conversion of casual employment under section 37 of the Employment Act, 2007
The claimant, having worked as a casual employee from May 2008 to 30th July 2015, ceased to be a casual worker and became protected under section 37, entitled to the rights and benefits under the Act
The court applied the established doctrine that continuous casual employment in duties not expected to end converts the contract by operation of law. Relying on Court of Appeal authority under section 37, the claimant's seven-year continuous service as a watchman/security guard converted his oral casual contract into a term contract entitling him to monthly wages, leave and other statutory benefits.
Whether the termination of the claimant's employment was unfair
The termination was unfair; there was no valid reason, notice or hearing
The respondent alleged the claimant absconded after requesting his wages, but failed to attend the hearing and produced no work records under section 10(6) and (7) of the Employment Act. The court found that even desertion requires notice, hearing under section 41(2) and demonstration of measures taken. The claimant's testimony that he was dismissed without notice was more probable, so termination without valid reason or hearing was unfair.
Entitlement to remedies: notice pay, leave pay, severance pay and underpayments
Notice pay of Ksh.10,954.70 (per applicable Wage Orders for an accommodated night guard), leave pay of Ksh.16,431 limited to the last 18 months under section 28, and underpayments of Ksh.320,394 per the applicable Wage Orders were awarded; severance pay was declined as the case did not fall under section 40
The court applied the applicable Wage Orders to compute a night guard's gross wage and awarded notice on that basis. Leave pay was restricted to basic pay for the last 18 months under section 28 of the Act. Severance pay is payable only under section 40 (redundancy), which did not apply. Underpayments were computed month-by-month against the Wage Order rates for the period May 2009 to July 2015.
Legal principles established
#- A casual employee in continuous employment undertaking duties not expected to end ceases to be a casual worker and becomes protected under section 37 of the Employment Act, 2007
- An employee alleged to have deserted duty is subject to summary dismissal only upon notice and hearing under section 41(2) of the Employment Act, and a report should be filed with the Labour Officer
- It is not sufficient for an employer to cite the employee for desertion; the employer must demonstrate the measures taken to address the alleged misconduct
- Employment must terminate for a valid reason and upon the employee being given a hearing and notice
Court orders
#- 1.Judgment entered for the claimant against the respondent in the following terms: (a) Notice pay Ksh.10,954.70; (b) Underpayments Ksh.320,394; (c) Leave pay Ksh.16,431; (d) Certificate of service shall issue; and (e) Costs of the suit
- 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, "Joseph Maina Mwangi v Gathare Bar Hotel & Boarding House [2021] KEELRC 1424 (KLR)", Case Analysis (2021). Cause No. 2264 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1424/eng@2021-02-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.