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ELRCDismissedELRC Cause (Mombasa), Memorandum of Claim filed 28.06.2018· [2022] KEELRC 474 (KLR)

Alexander Mutisya Muya & 7 others v Jona Pestcon Limited [2022] KEELRC 474 (KLR)

Employment and Labour Relations Court
18 March 2022
1,803 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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Eight claimants, engaged as cleaners by the respondent contractor providing landscaping and cleaning services to the Kenya Ports Authority, sued for terminal dues and compensation for alleged unlawful and unfair termination on 31.01.2018. They claimed notice pay, public holiday pay, severance, underpayment, accrued leave, house allowance and 12 months' compensation, pleading written contracts from 15.06.2014 (some oral). The respondent denied the claims, asserting fixed 6-month contracts tied to the KPA contract's lifespan, that leave and offs were granted, statutory deductions remitted, and that employment ended lawfully when the KPA contract lapsed; it also raised limitation and prematurity. By consent the suit was determined on pleadings, documents and submissions. The Court held that the parties were in contracts of service but that these were for a specific assignment, which lapsed on 31.01.2018 when the KPA outsourcing contract was not extended; unfair termination was not established. Notice pay was misconceived under section 35(1); leave, holiday and off claims failed for want of strict evidence; severance was declined; underpayment was unpleaded; pay was consolidated including house rent; and service pay was barred by NSSF membership under section 35(6)(d). The suit was held not premature, section 47(3) preserving the right to sue. The memorandum of claim was dismissed with each party bearing own costs, the Court balancing the claimants' clean service record against possible NSSF non-remittance.

Key legal issues

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01

Nature of the contracts of service

Holding

The claimants were employed under contracts for a specific assignment tied to the respondent's KPA outsourcing contract

Reasoning

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.

p. 2
02

Whether termination was unlawful and unfair

Holding

No unfair termination; contracts lapsed upon extinction of the specific work

Reasoning

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.

p. 2
03

Entitlement to notice pay

Holding

Claim for pay in lieu of notice misconceived

Reasoning

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.

p. 2
04

Prematurity of suit for failure to exhaust labour officer proceedings

Holding

Suit was not premature

Reasoning

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.

p. 3
05

House allowance

Holding

Gross monthly pay was consolidated to include house rent

Reasoning

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.

p. 3
06

Costs despite clean record and NSSF non-remittance

Holding

Each party to bear own costs in balancing justice

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.Dismissal of the memorandum of claim
  2. 2.Each party to bear own costs of the suit

Authorities

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Legislation

  • Employment Act, 2007section 90
  • Employment Act, 2007sections 27 and 28
  • Employment Act, 2007section 35(1)
  • Employment Act, 2007section 35(6)(d)
  • Employment Act, 2007section 47(3)
  • Employment Act, 2007section 31
  • Regulation of Wages (General) Order, 2017minimum wage for cleaners in Mombasa (Kshs. 11,541)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and the ELRC Act (dispute of contract of service)

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, "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.