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ELRCPartially AllowedEmployment and Labour Relations Court Cause (Memorandum of Claim dated 6th October 2017)· [2022] KEELRC 429 (KLR)

Martin Oramisi Otwane v Eslons Plastics Of Kenya Limited [2022] KEELRC 429 (KLR)

Employment and Labour Relations Court
24 March 2022
1,334 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 ruled that daily wages don't make you a casual labourer, awarding a dismissed worker Kshs. 295,200 for unfair termination.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent from June 2009, sued for unlawful dismissal and terminal dues, alleging he was denied access to the Respondent's premises on 1st and 2nd May 2016 and escorted out by security guards, which amounted to summary dismissal without due process. He claimed notice pay, house allowance, leave pay, service pay, unremitted NSSF dues and 12 months' compensation. The Respondent denied the claims, asserting the Claimant was a casual labourer paid daily wages who voluntarily left employment on 3rd June 2016. The court framed three issues: the nature and status of employment, whether dismissal was wrongful, and entitlement to remedies. Applying its Reef Hotel Limited v Josephine Chivatsi decision, the court held that casualness turns on duration of engagement rather than mode of payment, and found the Respondent's unsigned muster roll and incomplete documents insufficient to prove casual employment. On dismissal, the Respondent's own witnesses described the Claimant being escorted out after allegedly reporting to work intoxicated, but no evidence showed he was summoned to answer any charge; termination was therefore without valid reason under Section 43 and in breach of procedure under Section 41 of the Employment Act. The court awarded 7 months' salary as compensation (Kshs. 126,000), one month's notice pay (Kshs. 18,000), leave pay for 7 years (Kshs. 88,200) and service pay for 7 years (Kshs. 63,000), totalling Kshs. 295,200, with interest at court rates from judgment. The house allowance claim failed as the daily wage was ordinarily inclusive of it. The Claimant received costs. Judgment was delivered virtually at Nairobi on 24th March 2022 by Linnet Ndolo, Judge.

Key legal issues

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01

Whether the Claimant was a casual employee

Holding

The Respondent failed to prove casual employment; the Claimant was a term-contract employee under Section 37 of the Employment Act

Reasoning

The court applied the Reef Hotel test that casualness turns on duration, not daily payment. The muster roll was unsigned and the 'Casual Contract' did not cover the whole employment period; no attendance register proved intermittent work. The Claimant worked Monday to Saturday continuously, so casual status was not established.

p. 2
02

Whether the Claimant was unlawfully and unfairly dismissed

Holding

Termination was without valid reason and in violation of due process

Reasoning

The Claimant alleged being locked out on 1st and 2nd May 2016; the Respondent claimed he voluntarily left on 3rd June 2016 but its witnesses described him being escorted out after reporting while intoxicated. No evidence showed he was summoned to answer either charge of absconding or intoxication; thus neither charge was proved and Sections 43 and 41 were breached.

p. 3
03

Entitlement to remedies

Holding

Compensation of 7 months' salary, notice pay, leave pay and service pay awarded; house allowance refused

Reasoning

Seven months' compensation reflected length of service and the Respondent's unlawful conduct. Leave pay succeeded because the casual-employee defence failed. Non-remittance or erratic NSSF remittances justified service pay for the entire employment. House allowance failed since the daily wage was ordinarily inclusive of it.

p. 3

Legal principles established

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  • The defining feature of casual employment is not the mode of 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
  • An employer must prove a valid reason for termination under Section 43 and observe due procedure under Section 41 of the Employment Act; unproved and untested charges render a dismissal unlawful

Court orders

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  1. 1.Judgment for the Claimant in the total sum of Kshs. 295,200 (7 months' salary compensation Kshs. 126,000; 1 month's salary in lieu of notice Kshs. 18,000; leave pay for 7 years Kshs. 88,200; service pay for 7 years Kshs. 63,000)
  2. 2.Interest on the decretal sum at court rates from the date of judgment until payment in full
  3. 3.Costs of the case awarded to the Claimant

Authorities

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Legislation

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

Cases cited (1)

  • Reef Hotel Limited v Josephine Chivatsi
    [2021] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and Employment and Labour Relations Court Act (first-instance employment claim)

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, "Martin Oramisi Otwane v Eslons Plastics Of Kenya Limited [2022] KEELRC 429 (KLR)", Case Analysis (2022). Employment and Labour Relations Court Cause (Memorandum of Claim dated 6th October 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/429/eng@2022-03-24

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