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ELRCPartially AllowedCause No. 1998 of 2016· [2021] KEELRC 1448 (KLR)

Daniel Mwanzia Mutua v Kenya Builders & Concrete Co. Limited [2021] KEELRC 1448 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
20 January 2021
MMM. Mbaru
1,068 words in judgment
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The bottom line

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Long-serving 'casual' workers in Kenya gain full Employment Act protections, but courts will reject inflated terminal dues claims lacking evidence.

What this practically means

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Executive summary

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The claimant, employed as a general worker on a daily wage of Ksh.586 payable weekly from 15th July 2011, sued the respondent alleging unlawful and unfair termination without notice or payment of terminal dues. He sought notice pay, house allowance for 91 months, NSSF contributions, leave pay for four years, compensation, a certificate of service and costs. The respondent denied unlawful termination, contending the claimant was a casual employee engaged on a needs basis whose services ended when he failed to report to work, his last day being 29th February 2016. The court held that although the Employment Act permits casual employment, the claimant's continuous service, engagement under a monthly contract and issuance of warning letters meant he was not a casual employee but was protected under section 37 of the Employment Act. Termination without notice or reasons breached sections 35, 43 and 45. However, the payment of 7 days' wages for February 2016 satisfied the notice pay claim. The court found the daily wage was inclusive of house allowance under the Wage Orders, so the house allowance claim would amount to unjust enrichment; NSSF contributions are payable to the statutory body and not the employee; and the claimant's frequent absences defeated the leave pay claim. Judgment was entered for the claimant for compensation of Ksh.16,983.20 (one month's gross pay) and an order for a certificate of service under section 51, with each party bearing their own costs. Most of the monetary heads of claim were refused; the claim succeeded only in part.

Key legal issues

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01

Status of the claimant: casual or protected employee

Holding

The claimant was not a casual employee but was protected under section 37 of the Employment Act, having worked continuously and been issued contracts and warning letters

Reasoning

The court examined the respondent's payment records showing continuous work over the years including December 2015, January and February 2016. The existence of a monthly contract (August 2012) and issuance of warning letters for poor performance showed the claimant was in regular and continuous service, inconsistent with casual employment. Section 37 therefore applied, entitling him to statutory protections.

p. 2
02

Lawfulness of termination

Holding

Termination without notice or reasons was unfair, but the payment for 7 days in February 2016 addressed the notice pay due; compensation of one month's gross pay awarded

Reasoning

Section 35 requires notice and sections 43 and 45 require valid reasons for termination. None were given. However, since the respondent paid the claimant for 7 days worked in February 2016, that payment satisfied the notice pay entitlement. The court therefore awarded only one month's gross pay as compensation under the unfair termination remedy.

p. 2

Legal principles established

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  • Casual employment under the Employment Act is permitted but where an employee works continuously for periods aggregating one month or more, section 37 protects them and they enjoy the rights and benefits under the Act
  • Issuance of warnings and engagement under a contract do not define a casual employee; such features indicate regular continuous employment
  • Termination of employment must be with notice under section 35 and for valid reasons under sections 43 and 45 of the Employment Act

Court orders

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  1. 1.Judgment entered for the claimant against the respondent for compensation at Ksh.16,983.20
  2. 2.A certificate of service to be issued in accordance with section 51 of the Employment Act, 2007
  3. 3.Each party to pay own costs
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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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Daniel Mwanzia Mutua v Kenya Builders & Concrete Co. Limited [2021] KEELRC 1448 (KLR)", Case Analysis (2021). Cause No. 1998 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1448/eng@2021-01-20

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