Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No 1671 of 2016· [2022] KEELRC 1022 (KLR)

Albert Mogisi Mokaya v Haggai Multi-Cargo Handling Services Limited [2022] KEELRC 1022 (KLR)

Employment and Labour Relations Court
21 January 2022
2,613 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

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

#
The claimant sued the respondent for wrongful dismissal from employment, having worked as a store department assistant from 8th October 2012 until 19th October 2015, when he was sent home with others on account of there being no work. The respondent entered neither appearance nor defence despite affidavit evidence of service; the matter proceeded formally under Rule 22 of the Court's Rules. The court distilled three issues: the nature of the employment relationship, whether termination was unfair and unlawful, and the reliefs available. On the first, the court held that although the claimant began as a casual, his continuous service of approximately three years triggered conversion under section 37(1) of the Employment Act, deeming the contract one for monthly wages, consistent with Nanyuki Water & Sewage Company Limited v Benson Mwiti Ntiritu and Rashid Odhiambo Allogoh v Haco Industries. On the second, the court found the stated reason for termination (no work) amounted to redundancy under section 2 of the Act. Sections 43(1) and 45(2) place the burden on the employer to prove valid reasons and section 40(1) prescribes the redundancy procedure. With no evidence of compliance, the termination was held substantively and procedurally unfair. The court awarded five months' gross salary as compensatory damages (Kshs 85,000), one month's salary in lieu of notice (Kshs 17,000), and severance pay for three years (Kshs 25,500), totaling Kshs 127,500, plus costs. Claims for overtime, off days, public holidays and house allowance were declined as unsubstantiated or presumed subsumed in gross salary.

Key legal issues

#
01

Nature of employment relationship

Holding

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.

Reasoning

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.

p. 2
02

Whether termination was unfair and unlawful

Holding

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.

Reasoning

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.

p. 3
03

Reliefs available

Holding

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.

Reasoning

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.

p. 4

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. 1.Compensatory damages in the sum of Kshs 85,000/= equivalent to 5 months gross salary
  2. 2.One month's salary in lieu of notice being Kshs 17,000/=
  3. 3.Severance pay for 3 years being the sum of Kshs 25,500/=
  4. 4.Total award of Kshs 127,500/=
  5. 5.The claimant shall also have the costs of the suit

Authorities

#

Legislation

  • Employment ActSection 37(1), (3), (4)
  • Employment ActSections 2, 35(1)(c), 40(1), 43(1), 45(2)
  • Employment ActSections 40 and 45 (as cited by claimant's submissions)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (3)

  • Abigael Jepkosgei Yator & another vs China Hanan International Co. Ltd
    (2018) eKLR
  • Nanyuki Water & Sewage Company Limited v Benson Mwiti Ntiritu & 4 others
    [2018] eKLR
  • Rashid Odhiambo Allogoh & 245 Others vs Haco Industries Limited
    [2015] eKLR
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.