Benard Maithya Matu & 5 others v Acme Containers Limited [2021] KEELRC 1827 (KLR)
The bottom line
#Kenya's Employment Court confirmed that workers paid per task completed, not per time worked, generally cannot claim notice pay, leave or severance.
What this practically means
#Executive summary
#Key legal issues
#Nature of the parties' engagement - casual employment convertible under section 37 or piece work arrangement
The parties were in a piece work arrangement at an agreed rate per bag loaded, not casual employment convertible to a term contract under section 37
Re-evaluating the evidence on the first appeal, the payment vouchers showed the claimants signed against payments computed at Kshs. 3.00-4.00 per bag loaded. RW1's contradiction did not displace the documentary evidence. The trial Court did not misdirect itself. Section 2 of the Employment Act defines piece work as pay ascertained by the amount of work performed irrespective of time, and the arrangement here matched that definition.
Whether time-based remedies (compensation under section 49, notice, leave, severance) are available in piece work arrangements
They are not available where time worked was immaterial and no monthly rate was established
Following Nyevu Sibya Maithya v Krystalline Salt Limited, without an established rate of pay per day, week or month the Court cannot reasonably assess compensation, notice pay, severance or leave claims. Since the appellants worked within their own discretion and earned per bag loaded, unfair termination, redundancy procedure under section 40 and accrued leave did not arise on the pleadings and evidence.
Burden of proving terms of employment under section 10(7) of the Employment Act
The respondent discharged the burden of disproving the alleged Kshs. 12,000 monthly salary through payment vouchers showing piece work pay of Kshs. 4.00 per bag
Section 10(7) places the burden of proving or disproving an alleged term of employment on the employer. The respondent pleaded intermittent engagement with daily pay, exhibited signed payment vouchers, and RW1 testified to the agreed per-bag rate. The Court found this sufficient to disprove the claimants' alleged monthly wage.
Role of the first appellate court
The first appellate court re-evaluates the evidence and arrives at its own conclusion, bearing in mind it did not take the evidence first-hand
The Court restated the settled function on a first appeal: to re-evaluate the record and draw its own conclusions while according due regard to the trial Court's advantage of hearing witnesses. Applying that standard, it found no misdirection by the trial Magistrate in fact or law.
Legal principles established
#- Piece work arrangements are pay structures capable of existing within a contract of employment and do not by themselves make the minimum terms of the Employment Act inapplicable
- Time-based remedies are generally unavailable in piece work arrangements where there is no established rate of pay per day, week or month
- A party is bound by their pleadings; a statutory provision invoked for the first time in submissions is an afterthought
- Ambiguous pleadings in a memorandum of appeal that appear to extend the appeal to persons not listed as appellants weigh against allowing the appeal
Court orders
#- 1.The appeal is dismissed
- 2.Each party to bear own costs of the appeal and of the suit
- On appeal from
- Principal Magistrate's Court (Hon. Lesootia, Principal Magistrate)
- not stated
- Jurisdiction invoked
- First appeal from the Principal Magistrate's Court under the employment law appellate framework (not expressly cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benard Maithya Matu & 5 others v Acme Containers Limited [2021] KEELRC 1827 (KLR)", Case Analysis (2021). Appeal filed 03.03.2020 (memorandum of appeal) against PMCC judgment delivered 20.02.2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1827/eng@2021-04-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.