Albert Mogisi Mokaya v Haggai Multi-Cargo Handling Services Limited [2022] KEELRC 1022 (KLR)
The bottom line
#A Kenyan court ruled that 'casual' workers become permanent after three months of continuous work, and employers must follow redundancy law before dismissal.
What this practically means
#Executive summary
#Key legal issues
#Nature of employment relationship
Though engaged as a casual, the claimant's continuous service of approximately three years converted his contract to one with monthly wages under section 37(1) of the Employment Act.
Section 37(1) deems a casual employee who works for not less than one month continuously, or whose work cannot be completed within three months, to be on monthly-wage terms. The claimant's bank statements showed weekly payments from July to October 2015, corroborating continuous service beyond three months. This was uncontroverted since the respondent did not defend the claim. The court adopted the Court of Appeal's reasoning in Nanyuki Water & Sewage Company Limited v Benson Mwiti Ntiritu and relied on Rashid Odhiambo Allogoh v Haco Industries on section 37(3) entitlements.
Whether termination was unfair and unlawful
The termination, being redundancy, was neither substantively nor procedurally fair as the respondent proved no valid reason and complied with none of the section 40(1) preconditions.
Sections 43(1) and 45(2) place the burden on the employer to prove valid and fair reasons for termination. The stated reason — lack of work — fell within redundancy under section 2 of the Act. The employer had to prove services were superfluous and comply with section 40(1) preconditions including one month's notice, notification to the labour officer, and severance pay. The respondent did not participate in the trial, so no evidence of compliance existed. Termination was therefore both substantively and procedurally unfair.
Reliefs available
The claimant was awarded five months' gross salary as compensatory damages, one month's salary in lieu of notice, and severance pay for three years; claims for overtime, off days, public holidays and house allowance failed for want of proof.
Following the finding of unfair termination through redundancy, the court exercised discretion to award compensatory damages of five months' gross salary, severance pay at the statutory rate for three completed years, and one month's salary in lieu of notice under section 35(1)(c). Overtime and related claims were unsubstantiated, and house allowance was presumed subsumed in gross salary per the Black's Law Dictionary definition of gross income.
Legal principles established
#- A casual employee who works continuously for the equivalent of three months or more is deemed under section 37(1) of the Employment Act to be employed on monthly-wage terms, converting the contract out of casual status.
- The burden of proving reasons for termination and procedural compliance in redundancy rests on the employer; unproved, the termination is unfair.
Court orders
#- 1.Compensatory damages in the sum of Kshs 85,000/= equivalent to 5 months gross salary
- 2.One month's salary in lieu of notice being Kshs 17,000/=
- 3.Severance pay for 3 years being the sum of Kshs 25,500/=
- 4.Total award of Kshs 127,500/=
- 5.The claimant shall also have the costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes pursuant to Article 162(2) of the Constitution (establishing the Court); matter proceeded undefended under Rule 22 of the Court's Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Albert Mogisi Mokaya v Haggai Multi-Cargo Handling Services Limited [2022] KEELRC 1022 (KLR)", Case Analysis (2022). Cause No 1671 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1022/eng@2022-01-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.