Henry Oluoch Onyango v Anvi Emporium Limited [2021] KEELRC 2052 (KLR)
The bottom line
#A Kenyan court ruled a 'casual' worker who served over a month becomes a permanent-term employee, and firing him without a show-cause letter was unfair.
What this practically means
#Executive summary
#Key legal issues
#Underpayment of wages
Claim failed for want of proof of the applicable wage orders
The court held that underpayment arises where wages fall below prescribed minimum rates or contractually agreed wages. The Claimant did not identify which Regulation of Wages (Amendment) Orders applied to his employment, so the court could not verify any shortfall against gazetted minimums.
Nature of the contract - casual versus term employment
The Claimant had become a term employee
Although the Respondent contended the Claimant was a casual worker within the section 2 definition of the Employment Act, continuous service exceeding one month converted the engagement into term employment under sections 9 and 37 of the Act.
Unfair termination
Termination found unfair; the Claimant's account of union-related separation was preferred
The parties gave conflicting accounts. The Claimant testified the separation followed union membership, supported by documentary evidence of a union-employer dispute. The court found this plausible. Even on the Respondent's own account of desertion, no show-cause preceded acceptance of the alleged repudiation (Societe General v Geys), so the termination was unfair.
Compensation and notice pay
Five months' wages as compensation and one month's salary in lieu of notice awarded
Considering service from about 2005 to 2016, the court assessed compensation at five months' wages, computed at Kshs 280/- per day multiplied by 22 days to give a monthly wage of Kshs 6,160/-. One month's notice pay was awarded under section 35(1) of the Employment Act.
Legal principles established
#- A casual employee who serves continuously for more than one month becomes a term employee by virtue of sections 9 and 37 of the Employment Act
- Where an employee abandons duty, the employer must issue a show-cause/ultimatum before accepting the repudiation of contract
Court orders
#- 1.Declaration that the Claimant's employment was unfairly terminated
- 2.Award of compensation equivalent to 5 months' wages of Kshs 30,800/-
- 3.Award of pay in lieu of notice of Kshs 6,160/- (total Kshs 36,960/-)
- 4.Claimant to have costs of the Cause
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment cause)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Henry Oluoch Onyango v Anvi Emporium Limited [2021] KEELRC 2052 (KLR)", Case Analysis (2021). Cause No 15 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2052/eng@2021-03-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.