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ELRCDismissedCause relating to Memorandum of Claim dated 13th April, 2018 (number not stated in judgment)· [2022] KEELRC 538 (KLR)

Erick Kabangaba Wekesa & 4 others v Mavj Kaji & Brother Limited [2022] KEELRC 538 (KLR)

Employment and Labour Relations Court
9 March 2022
HWHellen Wasilwa
1,560 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that workers hired for a specific construction project are not unfairly terminated when the project ends.

What this practically means

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Executive summary

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Five claimants, engaged between 2014 and 2016 as general labourers and carpenters on a daily-wage casual basis, filed a memorandum of claim seeking a declaration that their dismissals were unfair and wrongful, accrued and outstanding payments, compensation for unfair termination, costs and interest. They were engaged to work on the construction of the Sarova Woodlands Hotel. They claimed their engagements had converted from casual to ordinary employment under section 37 of the Employment Act after working for over a year, and that the Respondent terminated them verbally without notice or redundancy procedure. The Respondent contended that the Claimants were project casuals engaged on availability-of-work basis for a specific construction project, and that upon completion of the project in 2017 the parties separated, with no termination or redundancy. The court found that the Claimants were hired specifically for the hotel project, were paid only for days worked, were given no promise of employment beyond the project, and did not serve the Respondent on any other project. The relationship was characterised as a contract for service tied to the project. The court held that there was no unfair termination and no redundancy, as the project under which the Claimants were employed came to an end. The entire claim was dismissed on 9th March, 2022.

Key legal issues

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01

Nature of the Claimants' engagement - contract of service vs contract for service

Holding

The engagement was tied to a specific project and amounted to a contract for service; the Claimants knew they were engaged for the Sarova Woodlands Hotel project only

Reasoning

The court found that the Claimants were hired specifically to construct the Sarova Woodlands Hotel, were paid daily only for days worked, and there was no evidence of continuous service on other projects or any promise of employment beyond the project. Applying the definition of a contract for service as a job undertaken for a specific task, the court concluded the relationship ended upon project completion, not by termination.

p. 3
02

Whether the Claimants were unfairly terminated or declared redundant

Holding

There was no unfair termination and no redundancy; the separation flowed from completion of the project

Reasoning

The court held that the claim for unfair termination could not stand because the Claimants were not terminated; the project under which they were employed simply came to an end in 2017. Similarly, no redundancy arose because the project itself was completed. The entire claim was therefore dismissed.

p. 3

Legal principles established

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  • Engagement of workers for a specific construction project, with payment only for days worked and no promise of further employment, constitutes a contract for service whose natural end on project completion is not unfair termination

Court orders

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  1. 1.The Claimant's case is dismissed in its entirety

Authorities

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Legislation

  • Employment Actsection 2
  • Employment Actsection 37
  • Employment Actsection 40

Cases cited (4)

  • Silas Mutwiri Vs Haggai Multi Cargo Handling Services Limited
    Cause No. 107 of 2010
  • Stanley Mungai Muchai V National Oil Corporation Kenya
    [2012] eKLR
  • Thomas Odol Ojwang Vs Kenol Kobil Limited
    [2015] eKLR
  • Ronald Kai Tsuma & 4 others V China Jianqxi Kenya Limited
    [2019] eKLR
Jurisdiction invoked
Original jurisdiction under the Employment Act and the Employment and Labour Relations Court Act (not expressly cited in judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Erick Kabangaba Wekesa & 4 others v Mavj Kaji & Brother Limited [2022] KEELRC 538 (KLR)", Case Analysis (2022). Cause relating to Memorandum of Claim dated 13th April, 2018 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/538/eng@2022-03-09

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