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ELRCPartially AllowedMombasa Employment and Labour Relations Court Appeal (from Mombasa CMELRC No. 167 of 2019)· [2021] KEELRC 1681 (KLR)

Reef Hotel Limited v Josephine Chivatsi [2021] KEELRC 1681 (KLR)

Employment and Labour Relations Court
27 May 2021
LNLINNET NDOLO
2,276 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 confirmed a hotel worker was unfairly fired, but trimmed her leave and holiday awards because she lacked evidence of exact days worked.

What this practically means

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Executive summary

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The Employment and Labour Relations Court at Mombasa, per Linnet Ndolo J, dismissed this first appeal in part, varying the judgment of Hon M.L Nabibya, PM in Mombasa CMELRC No. 167 of 2019, which had awarded a former Reef Hotel room steward one month's salary in lieu of notice, six months' salary for unlawful termination, leave allowance and unpaid public holidays. The court framed four issues: the nature and status of the Respondent's employment, whether unfair termination was established, and the levels of leave pay and public holiday compensation due. On the first issue, the court affirmed the trial court's finding that the Respondent was not a casual employee, holding that casual employment is defined not by daily wage payment but by continuous employment of less than a month or piece work within an aggregate period of less than three months, and that Section 37 of the Employment Act permits inference of a term contract from prolonged service. On unfair termination, the court noted that a consent adopting witness statements without oath-rendered adoption left the statements of three of the Appellant's witnesses with no probative value; the Manager's uncorroborated account could not displace the finding that the termination violated Sections 41 and 43 of the Employment Act. The notice and six months' compensation awards were confirmed. However, the leave pay and public holiday awards were set aside: the leave award ignored the Respondent's seasonal work pattern, and the public holiday award lacked evidence of the specific holidays worked, per Rogoli Ole Manadiegi v General Cargo Services Limited. Both heads were substituted with amounts based on the KUDHEIWA tabulation of 4th January 2017: Kshs. 14,306 for leave pay and Kshs. 9,952 for public holidays. Each party bears their own costs in both courts.

Key legal issues

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01

Nature and status of the Respondent's employment

Holding

Respondent was not a casual employee; seasonal contracts and intermittent daily work over about four years attract the Section 37 presumption of a term contract.

Reasoning

Casual employment is defined not by daily wage payment but by continuous employment of less than a month or piece work within an aggregate period of less than three months. The Respondent worked a room steward's continuous job on seasonal contracts over about four years. The Appellant's computer-generated records lacked an identified maker and source documents, and daily wage payments on a few dates did not make her a casual employee. The trial court's finding was affirmed.

p. 3
02

Whether unfair termination was established

Holding

Yes - the Appellant terminated the Respondent's employment without justifiable cause under Section 43 and in violation of Section 41 procedural fairness.

Reasoning

Three of the Appellant's witness statements were not adopted on oath due to the problematic consent, so they had no probative value. The Manager Kai's testimony that the Respondent simply failed to present herself for further engagement was uncorroborated. Combined with the finding that she was not a casual employee, the only conclusion was that the termination lacked justifiable cause and procedural fairness, confirming the trial court's award of six months' salary and one month's notice.

p. 3
03

Level of leave pay due

Holding

Trial court's award of 92 days' leave pay set aside and replaced with Kshs. 14,306 per the KUDHEIWA tabulation.

Reasoning

The trial court's assumption of entitlement to 23 days' annual leave for four years contradicted the Respondent's own testimony that she worked on seasonal contracts and was sent away during low seasons. The court held the trial court should have adopted the tabulation presented by the Kenya Union of Domestic Hotels Educational Institutions and Hospital Workers dated 4th January 2017, producing an award of Kshs. 14,306.

p. 4
04

Level of public holiday compensation due

Holding

Trial court's award of Kshs. 14,000 for unpaid public holidays set aside and replaced with Kshs. 9,952 per the KUDHEIWA tabulation.

Reasoning

The trial court wrongly proceeded on the basis that the Respondent worked on all public holidays in the year, which was unsupported by her testimony. Relying on Rogoli Ole Manadiegi v General Cargo Services Limited, the burden rests on the employee to show which particular public holidays they worked. The Respondent did not adduce such evidence, so the court adopted the union's tabulation instead.

p. 4

Legal principles established

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  • The defining feature of casual employment is not daily wage payment but continuous employment of less than a month or piece work within an aggregate period of less than three months; under Section 37 of the Employment Act the Court can infer a term contract.
  • A witness statement only becomes testimony once its maker adopts it on oath.
  • An employee claiming compensation for working on public holidays bears the burden of adducing evidence of the particular holidays worked.
  • A first appellate court must re-consider and re-evaluate the evidence and arrive at its own conclusions, mindful that it did not see or hear the witnesses.

Court orders

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  1. 1.Appeal succeeds partially; the awards for leave pay and public holidays are set aside and replaced with leave pay of Kshs. 14,306 and public holidays of Kshs. 9,952
  2. 2.Confirmation of the trial court's award of 1 month's salary in lieu of notice (Kshs. 14,000) and 6 months' salary compensation for unlawful termination (Kshs. 84,000)
  3. 3.Each party to bear their own costs in this court and the court below

Authorities

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Legislation

  • Employment ActSection 2 (definition of casual employee)
  • Employment ActSection 37
  • Employment ActSection 43
  • Employment ActSection 41

Cases cited (2)

  • National Bank of Kenya v Samuel Nguru Mutonya
    [2019] eKLR
  • Rogoli Ole Manadiegi v General Cargo Services Limited
    [2016] eKLR
On appeal from
Magistrates' Court (CMELRC), Mombasa
Mombasa CMELRC No. 167 of 2019
Jurisdiction invoked
First appellate jurisdiction over the trial court judgment (Employment and Labour Relations Court sitting on appeal from the Magistrate's Court)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (11)

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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, "Reef Hotel Limited v Josephine Chivatsi [2021] KEELRC 1681 (KLR)", Case Analysis (2021). Mombasa Employment and Labour Relations Court Appeal (from Mombasa CMELRC No. 167 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1681/eng@2021-05-27

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