Alexander Mutisya Muya & 7 others v Jona Pestcon Limited [2022] KEELRC 474 (KLR)
The bottom line
#Eight cleaners lost their case because their contracts were tied to a specific job that ended, so no unfair termination or terminal dues were owed.
What this practically means
#Executive summary
#Key legal issues
#Nature of the contracts of service
The claimants were employed under contracts for a specific assignment tied to the respondent's KPA outsourcing contract
The exhibited written contracts confirmed the pleadings. The contracts expressly provided for a 6-month contract basis tied to the lifespan of the respondent's contract job with KPA. Once the outsourcing contract lapsed, the specific work became unavailable and the contracts of service lapsed by agreement.
Whether termination was unlawful and unfair
No unfair termination; contracts lapsed upon extinction of the specific work
The contract clause bound the parties and provided for engagement for the lifespan of the KPA contract job. The lapse of the KPA contract on 31.01.2018 extinguished the specific work. Allegations of unfair termination were therefore unjustified and the respondent's submissions were upheld.
Entitlement to notice pay
Claim for pay in lieu of notice misconceived
Section 35(1) of the Employment Act deems contracts not being contracts to perform specific work without reference to time to be terminable per prescribed notice. The claimants' contracts were for specific work with specific reference to time, so they were exempt from the minimum notice periods, and parties could contract terminable abruptly upon extinction of the specific work.
Prematurity of suit for failure to exhaust labour officer proceedings
Suit was not premature
Under section 47(3) of the Employment Act, the right to complain to a labour officer is in addition to the right to complain to the Court. Filing suit before concluding labour office proceedings therefore did not defeat the claim, even though the claimants appeared to have filed prior to exhausting that process.
House allowance
Gross monthly pay was consolidated to include house rent
The claimants pleaded an agreed gross monthly pay. The Court found the pay must have been consolidated as envisaged in section 31 of the Employment Act, 2007, inclusive of an element of house rent, defeating the separate house allowance claim.
Costs despite clean record and NSSF non-remittance
Each party to bear own costs in balancing justice
The Court considered the claimants' clean record of service and pay slips suggesting NSSF may not have been deducted and remitted, and balanced justice by ordering each party to bear own costs, though the memorandum of claim was dismissed.
Legal principles established
#- A contract to perform specific work with reference to time is exempt from the statutory minimum notice periods under section 35(1) of the Employment Act
- An employee's right to complain to a labour officer under section 47(3) of the Employment Act is in addition to the right to sue in court, so suit is not premature for failure to conclude labour office proceedings
- Special or liquidated claims must be strictly pleaded and proved
- NSSF membership precludes a claim for service pay under section 35(6)(d) of the Employment Act
Court orders
#- 1.Dismissal of the memorandum of claim
- 2.Each party to bear own costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and the ELRC Act (dispute of contract of service)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Alexander Mutisya Muya & 7 others v Jona Pestcon Limited [2022] KEELRC 474 (KLR)", Case Analysis (2022). ELRC Cause (Mombasa), Memorandum of Claim filed 28.06.2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/474/eng@2022-03-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.