Felix Luvanda Mwiritsa & 19 others v Cabinet Secretary, Ministry of Information, Communication and Technology, Public Service Commission & Attorney General [2021] KEELRC 2289 (KLR)
The bottom line
#Kenya's Employment Court ruled casual workers can't claim permanent jobs when contracts say so, but backdated termination letters made the dismissals unfair, entitling workers to compensation.
What this practically means
#Executive summary
#Key legal issues
#Whether casual employment contracts converted to permanent and pensionable terms under Section 37 of the Employment Act
The contracts were not subject to conversion to permanent and pensionable terms because their form was clear and unambiguous, expressly casual with no guarantee of permanency
The court examined the appointment letters and found they expressly stated the engagement was casual, terminable without notice, non-renewable and carrying no guarantee of permanent employment. Applying Jiwaji v Jiwaji and National Bank of Kenya v Pipelastic, the court held parties are bound by clear contractual terms. Section 37(1) applies only where the agreement is silent on features such as renewal and expiry.
Whether the termination was unfair and unjustified
The termination was unfair because the termination letters were backdated and gave no period of preparation to exit employment
The termination letters were dated 14/10/2016, indicated the contracts expired on 30th September 2016, with payment up to 31st October 2016. The court found the anomaly of backdating the termination to 30th September 2016 while letters were forwarded on 31st October 2016, depriving the Claimants of any preparation period before exit.
What remedies the Claimants are entitled to
Compensation of 3 months' salary each plus 1 month's salary in lieu of notice, less statutory deductions, with interest at court rates
Given the unfairness in issuing backdated termination letters, the court awarded each Claimant compensation equivalent to 3 months' salary and 1 month's salary as notice pay, less statutory deductions, plus interest at court rates from the date of judgment, and costs of the suit.
Legal principles established
#- Where a contract of employment is clear and unambiguous as to its casual nature and lack of guarantee of permanency, the court cannot rewrite it to convert it to permanent and pensionable terms
- Backdated termination letters that provide no period of preparation to exit employment render a termination unfair
Court orders
#- 1.Claimants awarded compensation of 3 months' salary each and 1 month's salary as notice period
- 2.Respondent to pay costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Act (Cause filed in the ELRC)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Felix Luvanda Mwiritsa & 19 others v Cabinet Secretary, Ministry of Information, Communication and Technology, Public Service Commission & Attorney General [2021] KEELRC 2289 (KLR)", Case Analysis (2021). Cause No. 2326 of 2016 (Consolidated with Causes 2327–2345 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2289/eng@2021-01-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.