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ELRCPartially AllowedCause No. 1045 of 2016· [2022] KEELRC 692 (KLR)

Justus Orina Mariita v Accurate Steel Mills Limited [2022] KEELRC 692 (KLR)

Employment and Labour Relations Court
17 February 2022
1,548 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that 'casual' workers engaged beyond one month become protected employees, and employers must follow redundancy procedures before termination.

What this practically means

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Executive summary

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The claimant sued the respondent alleging employment as a general worker from 2011 (or 2012) until termination on 7 November 2014 on grounds of shortage of work, claiming notice pay, leave pay, pro-rata leave, service gratuity and twelve months' compensation for unlawful termination. The respondent denied an employment relationship, describing the claimant as a casual labourer on renewable nine-week contracts, and alleged all dues were paid. The court framed three issues: the nature of the employment, the lawfulness of the termination, and entitlement to remedies. Relying on Sections 2 and 37 of the Employment Act, the court held that each renewable contract exceeded one month, so the casual engagement converted into a contract of service protected from unfair termination under Section 45, attracting 28 days' notice under Section 35(1)(c). The court applied the Silas Mutwiri case. On termination, the claimant's evidence of termination without notice was uncontroverted; the termination for shortage of work amounted to a redundancy and the mandatory procedure in Section 40(1)(a-g) was not followed, so the court found unfair termination and entered judgment for the claimant. On remedies, the court awarded one month's notice pay (Kshs.11,280), service gratuity at 15 days for three years (Kshs.16,920) and three months' compensation (Kshs.33,840), totaling Kshs.62,040 with interest from judgment, declining the leave claims as unproven special damages. Costs were awarded to the claimant.

Key legal issues

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01

Whether the claimant was a casual or permanent employee

Holding

The successive renewable contracts each exceeded one month, so the casual engagement converted into a contract of service under Sections 37(1)(a) and 35(1)(c) of the Employment Act

Reasoning

Section 2 of the Employment Act defines a casual employee as one engaged for no longer than 24 hours at a time. Under Section 37, continuous work beyond one month converts the engagement into a service contract. The appointment letters produced each ran beyond a month, and the claimant worked for over three years, so the employment was protected from unfair termination under Section 45.

p. 2
02

Whether the termination was unlawful or unfair

Holding

The termination was unfair as the mandatory Section 40 redundancy procedure was not followed

Reasoning

The claimant was terminated for shortage of work, which is in substance a redundancy. Section 40 prescribes mandatory steps: one month's notice of intended redundancy, meaningful consultation on the criteria, and payment of terminal dues. None were followed, and there was no evidence of any recall communication, so judgment entered for the claimant.

p. 3
03

Whether the claimant was entitled to the remedies prayed for

Holding

Partially: notice pay, service gratuity and 3 months' compensation awarded; leave claims declined for failure of proof

Reasoning

The court awarded one month's notice pay computed from the contracts on record and service gratuity at 15 days per year for three years. For fairness, compensation of three months' salary was awarded given about three years of service and no contribution to the termination. Leave claims failed as unproven special damages.

p. 3

Legal principles established

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  • A casual employee engaged for a period exceeding one month is converted into a contract of service under Section 37 of the Employment Act
  • Failure to adhere to the mandatory redundancy procedure under Section 40(1)(a-g) of the Employment Act renders a termination unlawful
  • Special damages must be specifically pleaded and proved

Court orders

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  1. 1.One month salary in lieu of notice of Kshs.11,280/= awarded
  2. 2.Service gratuity at 15 days for 3 years of Kshs.16,920/= awarded
  3. 3.Compensation for unfair termination of 3 months' salary equivalent, Kshs.33,840/= awarded
  4. 4.Total award of Kshs.62,040/= with interest at court rates from the date of judgment till full payment
  5. 5.Claimant awarded costs of the suit

Authorities

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Legislation

  • Employment ActSection 2
  • Employment ActSection 37
  • Employment Act 2007Section 37(1)(a)
  • Employment Act 2007Section 45
  • Employment ActSection 35(1)(c)
  • Employment ActSection 40 and 40(1)(a-g)
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure Act (Chapter 21 of the Laws of Kenya)Section 1B

Cases cited (1)

  • Silas Mutwiri vs Haggai Mwiti Cargo Handling Services Limited
    (2013) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act 2007 (first-instance memorandum of claim)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Justus Orina Mariita v Accurate Steel Mills Limited [2022] KEELRC 692 (KLR)", Case Analysis (2022). Cause No. 1045 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/692/eng@2022-02-17

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