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ELRCPartially AllowedCause No 1147 of 2016· [2022] KEELRC 691 (KLR)

Fredrick Ndaita Moses & another v Nelson Kuria & another [2022] KEELRC 691 (KLR)

Employment and Labour Relations Court
18 February 2022
3,170 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenyan workers called 'casual labourers' for years are legally permanent staff, and employers who fire them without notice and a hearing must pay compensation.

What this practically means

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Executive summary

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Two claims heard together in the Employment and Labour Relations Court at Nairobi concerned Fredrick Ndaita Moses (cook, employed from January 2006) and Patrick Muia Kitungi (driver, employed from September 2001), both allegedly terminated in October 2015 by the Respondents, who denied employing them and contended they were casual labourers engaged on a needs basis. The Respondents closed their case without calling any witness. The court framed three issues: whether the Claimants were casual employees; whether the terminations were procedurally and substantively valid; and entitlement to reliefs. Holding that the Claimants worked continuously for nine and fourteen years and were paid monthly, the court found their engagements had automatically converted to monthly term contracts under Section 37 of the Employment Act. The unrebutted evidence that no notice to show cause was issued and no disciplinary hearing convened established unfair termination; the Respondents failed to prove a valid reason or fair procedure under Sections 41, 43 and 45, applying the Kenfreight v Nguti standard. The court awarded each Claimant one month's salary in lieu of notice, payment of leave days for three years (the Respondents having failed to avail leave records), and compensation equivalent to five months' salary under Section 49, subject to statutory deductions - Kshs.126,346.15 for the 1st Claimant and Kshs.151,615.40 for the 2nd. Claims for public holidays, rest days, overtime, severance and underpayment were dismissed for lack of proof or inapplicability. Costs of the suit and interest from the date of judgment until settlement in full were awarded to the Claimants. Judgment delivered virtually on 18th February 2022 by Maureen Onyango, J.

Key legal issues

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01

Whether the Claimants were casual employees

Holding

The Claimants were not casual employees; their engagement converted by operation of law to monthly term contracts after one month's continuous service under Section 37.

Reasoning

The Employment Act defines a casual employee as one paid at the end of each day and not engaged for longer than twenty-four hours at a time. The Claimants worked continuously for 9 and 14 years respectively, paid monthly in cash or via Mpesa. Section 37(1) deems a casual employee who works for the equivalent of one month or more to be on monthly wages. Their terms therefore converted automatically to term contracts.

p. 4
02

Whether termination was valid procedurally and substantively

Holding

The termination was unfair; the Respondents proved neither a valid and fair reason nor a fair procedure under Sections 41, 43 and 45.

Reasoning

Sections 41 and 45 require notice, explanation, hearing and a valid fair reason. The Claimants testified no notice to show cause or disciplinary hearing occurred, and this evidence was unrebutted, the Respondents having closed their case without calling any witness. The employer therefore failed to discharge its burden under Section 43, and the Claimants discharged theirs under Section 47(5).

p. 5
03

Whether the Claimants are entitled to the reliefs sought

Holding

Entitled to notice pay, leave pay for three years and compensation of five months' salary each; claims for public holidays, rest days, overtime, severance and underpayment dismissed.

Reasoning

Having found unfair termination, Section 49 entitles the Claimants to notice pay and compensation. Considering Section 49(4) factors, five months' salary was reasonable rather than the pleaded twelve. Leave was awarded because the employer failed to avail records of utilisation. Overtime, holiday and rest-day claims lacked proof; severance does not apply absent redundancy; and the underpayment claim failed because the salary exceeded the statutory minimum wage.

p. 6

Legal principles established

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  • Casual employment automatically converts to a monthly term contract under Section 37 of the Employment Act where the employee works continuously for the equivalent of one month or more
  • An employer must prove both valid reason and fair procedure for termination; failure to rebut uncontradicted evidence of unfair termination discharges the employee's burden under Section 47(5)
  • Where the employer fails to avail leave records proving utilisation of leave, the employee is entitled to payment for leave days

Court orders

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  1. 1.Judgment entered in favour of Fredrick Ndaita Moses: one month salary in lieu of notice Kshs.15,000.00; payment of leave days Kshs.36,346.15; damages for wrongful termination Kshs.75,000.00; total Kshs.126,346.15
  2. 2.Judgment entered in favour of Patrick Muia Kitungi: one month salary in lieu of notice Kshs.18,000.00; payment of leave days Kshs.43,615.40; damages for wrongful termination Kshs.90,000.00; total Kshs.151,615.40
  3. 3.The amounts awarded shall be subject to statutory deductions
  4. 4.Claimants awarded costs of the suit and interest from the date of judgment until settlement in full

Authorities

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Legislation

  • Employment ActSection 9
  • Employment ActSection 10(5)
  • Employment ActSection 35(1)(c)
  • Employment ActSection 37
  • Employment ActSection 41
  • Employment ActSection 42(1)
  • Employment ActSection 43
  • Employment ActSection 44(3) and (4)
  • Employment ActSection 45
  • Employment ActSection 47(5)
  • Employment ActSection 49 (and 49(4))
  • Employment ActSection 51
  • Employment ActSection 87
  • Evidence ActSections 107, 108 and 109
  • Regulations of Wages (General) (Amendment) Order2015 Order (minimum wage for driver)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (7)

  • Hildah Mwangale v Fiyabi Fisiquot
    [2017] eKLR
  • Rogoli Ole Manadiegi v General Cargo Services Limited
    (2016) eKLR
  • Julius Arisi & 90 Others v Research International East Africa Limited
    (2019) eKLR
  • Hassanath Wanjiku v Vanela House of Coffees
    (2018) eKLR
  • Martin Ireri Ndwiga v Olerai Management Company
    (2017) eKLR
  • Kenya Broadcasting Corporation v Geoffrey Wakio
    (2019) eKLR
  • Kenfreight (EA) Limited v Benson K. Nguti
    (2016) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (employment dispute)

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, "Fredrick Ndaita Moses & another v Nelson Kuria & another [2022] KEELRC 691 (KLR)", Case Analysis (2022). Cause No 1147 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/691/eng@2022-02-18

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