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ELRCDismissedAppeal filed 03.03.2020 (memorandum of appeal) against PMCC judgment delivered 20.02.2020· [2021] KEELRC 1827 (KLR)

Benard Maithya Matu & 5 others v Acme Containers Limited [2021] KEELRC 1827 (KLR)

Employment and Labour Relations Court
23 April 2021
3,499 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This was a first appeal to the Employment and Labour Relations Court at Mombasa (Byram Ongaya J) against a judgment of Hon. Lesootia, Principal Magistrate, delivered on 20.02.2020 dismissing the appellants' claim. The appellants, former loaders, alleged they were employed by the respondent from around 2009 until 18.07.2018 when their services were verbally terminated without reason or hearing; they claimed 12 months' compensation for unfair termination, accrued leave, notice pay, certificates of service and costs. The respondent admitted engaging them as casuals but asserted they worked intermittently as and when work was available, paid daily, and stopped taking them on when business moved to SGR in July 2018. The trial Court found the claims not established on a balance of probabilities and dismissed the suit with each party bearing its own costs. On appeal, the Court noted defects in the memorandum of appeal as to who were appellants, re-evaluated the evidence, and found from the payment vouchers that the parties were in a piece work arrangement at an agreed rate of Kshs. 4.00 (or Kshs. 3.00) per bag loaded, not casual employment convertible to a term contract under section 37 of the Employment Act, 2007. The invocation of section 37 and section 40 (redundancy) in submissions was held to be an unpleaded afterthought. Relying on its earlier decisions, the Court held that time-based claims are generally unavailable in piece work arrangements without an established daily or monthly rate. The respondent was held to have discharged the burden under section 10(7) of disproving a Kshs. 12,000 monthly salary. The appeal was dismissed with each party bearing its own costs of the appeal.

Key legal issues

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01

Nature of the parties' engagement - casual employment convertible under section 37 or piece work arrangement

Holding

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

Reasoning

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.

p. 2
02

Whether time-based remedies (compensation under section 49, notice, leave, severance) are available in piece work arrangements

Holding

They are not available where time worked was immaterial and no monthly rate was established

Reasoning

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.

p. 4
03

Burden of proving terms of employment under section 10(7) of the Employment Act

Holding

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

Reasoning

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.

p. 4
04

Role of the first appellate court

Holding

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

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The appeal is dismissed
  2. 2.Each party to bear own costs of the appeal and of the suit

Authorities

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Legislation

  • Employment Act, 2007section 2 (definition of piece work)
  • Employment Act, 2007section 18 (payment for task or piece work)
  • Employment Act, 2007section 10(7)
  • Employment Act, 2007section 37
  • Employment Act, 2007section 40
  • Employment Act, 2007section 49

Cases cited (4)

  • Safari Joseph Ngala & 2 Others v Rapid Kate Services Ltd
    [2017] eKLR
  • Mboo Wambua and 30 others v Export Trading Company Limited
    [2018] eKLR
  • Amalgamated Union of Kenya Metal Workers v Kenya Vehicle Manufacturers Limited
    [2015] eKLR
  • Nyevu Sibya Maithya & 14 others v Krystalline Salt Limited
    [2017] eKLR
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

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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, "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.