Fredrick Ochieng v Samar Construction Co Limited [2022] KEELRC 1026 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Nature of the employment relationship
The claimant's casual engagement was converted by operation of section 37(1) and (3) of the Employment Act into a monthly contract of service entitling him to full statutory protections
The claimant was paid daily or weekly and held a Casual Labour Card, but the undisputed evidence showed continuous work over about two years on a large construction project (Blocks A and B of nine floors each). The work could not reasonably be completed within three months, and the respondent adduced no muster roll or casual labour register to prove a break in service. Section 37(1) therefore deemed the contract one with monthly wages, and section 37(3) conferred full statutory terms.
Whether termination was unfair and unlawful
The termination was unfair; it was in substance a redundancy but the respondent proved no valid reasons and complied with none of the section 40(1) conditions
Termination on account of low volume of work falls under the operational requirements of the employer, hence redundancy under section 45(2)(b)(ii). The respondent bore the legal burden under sections 43 and 45 to justify the redundancy and to demonstrate compliance with section 40(1) - notification, selection criteria, notice and severance pay. It tendered no evidence at all, merely asserting that services were no longer required, which was insufficient.
Reliefs available
Compensatory damages of three months' gross salary, one month's notice pay, service pay, prorated leave for 2016, outstanding dues and a certificate of service were awarded
Having found unfair termination, the court assessed compensatory damages at three months' gross salary based on length of service and the absence of any reasons advanced by the respondent. Notice pay and service pay under section 35(5) followed. Leave was limited to 2016 since earlier leave could not be presumed carried forward. The undisputed sum of Kshs 21,573 in outstanding dues was awarded, and a certificate of service was due under section 51(1).
Legal principles established
#- A casual employee engaged on work not reasonably expected to be completed within three months, or who works continuously for the equivalent of at least one month, is converted by section 37(1) of the Employment Act to a monthly-paid contract of service
- The burden of proving valid and fair reasons for termination rests on the employer, and failure to discharge it renders the termination unfair
- Termination on account of low volume of work amounts to redundancy, requiring compliance with section 40(1) of the Employment Act
Court orders
#- 1.Judgment entered in favour of the claimant against the respondent
- 2.Compensatory damages of Kshs 72,000/= (3 months gross salary)
- 3.One month's salary in lieu of notice of Kshs 24,000/=
- 4.Service pay for 3 years of Kshs 72,000/=
- 5.Outstanding dues of Kshs 21,573/=
- 6.Untaken leave days (10.5 days x Kshs 800) of Kshs 8,400/=
- 7.Total award of Kshs 199,973/=
- 8.Costs of the suit to the claimant
- 9.Interest on the total award at court rates from the date of judgment till payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (dispute over terms and termination of employment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Fredrick Ochieng v Samar Construction Co Limited [2022] KEELRC 1026 (KLR)", Case Analysis (2022). Cause No 1121 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1026/eng@2022-01-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.