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ELRCDismissedCause No 745 of 2015· [2022] KEELRC 467 (KLR)

Charles Kithuka & 19 others v DPL Festive Limited [2022] KEELRC 467 (KLR)

Employment and Labour Relations Court
18 March 2022
SRStella Rutto
3,224 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Twenty Kenyan workers lost their claim for unfair termination because they couldn't prove continuous employment and records showed they walked away themselves.

What this practically means

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Executive summary

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Twenty claimants, led by Charles Kithuka, sued DPL Festive Limited alleging they were regular employees engaged between 2005 and 2011 whose employment ceased on 1 August 2013 because of their persistent demand to be converted from casual to permanent terms. They sought notice pay, severance pay, annual leave, shift allowance, compensatory damages, costs and certificates of service. The respondent denied the claimants were regular employees, asserting they were casual labourers engaged on a need-by-need basis, and contended that the claimants themselves had requested postponement of a conversion exercise scheduled for 1 July 2013, which was rescheduled to 1 August 2013, and that they then failed to report for duty. The claimants did not file submissions. The court framed four issues: the nature of the employment relationship, whether there was termination, whether it was unfair, and available reliefs. It found the claimants failed to discharge their burden of proving continuous employment so as to trigger deemed conversion under section 37 of the Employment Act, noting they never moved to compel production of the employer's attendance records. The court further found, from the employees' own letter of 28 June 2013, the minutes of the 1 July 2013 meeting signed by two claimants, and the KHRC demand letter describing the claimants as having resigned, that the claimants were not terminated but left on their own accord. The claim was dismissed in its entirety with each party bearing its own costs.

Key legal issues

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01

Whether the claimants were regular employees whose terms converted from casual to permanent by operation of section 37 of the Employment Act

Holding

The claimants failed to prove continuous employment; no muster roll or continuous payment vouchers were produced, and they did not compel production of the employer's attendance records

Reasoning

The court held the claimants bore the burden under section 107 of the Evidence Act to prove they were regular employees. Both parties' daily casual payment vouchers covered different periods and shifts, and none aggregated to a continuous month. No muster roll was before the court. The court noted that although attendance records were in the employer's possession, the claimants never served a Notice to Produce to compel their production. Absent such evidence, the claim for statutory conversion under section 37 failed.

p. 3
02

Whether the claimants were terminated

Holding

The claimants were not terminated; they left employment on their own accord after rejecting conversion to permanent terms

Reasoning

The documentary record showed the claimants themselves wrote on 28 June 2013 requesting that conversion be put on hold, and minutes of a 1 July 2013 meeting signed by two claimants resolved to defer conversion to 1 August 2013. The KHRC demand letter described the claimants as having resigned due to misunderstandings over terms. The respondent's letter of 5 August 2013 reported that 28 employees failed to report for duty when conversion took effect. The court found the claimants deserted the employment voluntarily.

p. 4

Legal principles established

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  • Where a casual employee works continuously for a period aggregating one month or more, the contract is deemed to be one where wages are paid monthly under section 37 of the Employment Act
  • The burden of proving unfair termination rests on the employee under section 47(5) of the Employment Act
  • A party must use mechanisms such as a Notice to Produce to compel production of documents in the possession of the opposing party

Court orders

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  1. 1.Dismissal of the claim in its entirety
  2. 2.Each party to bear its own costs

Authorities

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Legislation

  • Employment Actsection 2
  • Employment Actsection 37(1)
  • Employment Actsection 35(1)(c)
  • Employment Actsection 45
  • Employment Actsection 47(5)
  • Evidence Actsection 107
  • Evidence Actsection 69
  • Evidence Actsection 68(a)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure Actsection 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (4)

  • Silas Mutwiri vs Haggai Multi Cargo Handling Services Limited
    (2013) eKLR
  • Francis Ndirangu Wachira vs Betty Wairimu Maina
    (2019) eKLR
  • Joseph Okelo Odhiambo & another vs Y.J Elmi and 2 others
    (2012) eKLR
  • John Mwaniki Kihimo vs KAK Enterprises
    (2013) eKLR
Jurisdiction invoked
Employment and Labour Relations Court established under Article 162(2) of the Constitution; claim for unfair termination and employment benefits under the Employment Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Charles Kithuka & 19 others v DPL Festive Limited [2022] KEELRC 467 (KLR)", Case Analysis (2022). Cause No 745 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/467/eng@2022-03-18

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