Wafula v Century Feeds Limited (Cause 186 of 2018) [2022] KEELRC 1327 (KLR)

Section 2 of the Employment Act recognises written and oral contracts, express or implied. Section 37(1) deems a casual employee who works continuously for the equivalent of not less than one month on work not completable within a month to be employed on monthly terms, attracting section 35(1)(c). Having worked continuously as a turnboy for two uninterrupted years, the Claimant was deemed a monthly employee. The employer's failure to keep written records could not be used against him.

RW1's account that the Claimant deserted duty was found to be an afterthought; no evidence was tendered of efforts to trace the Claimant, no records of calls, no letters recalling him, and no warning that absence would attract termination. The Claimant's evidence that he was terminated for pursuing compensation was more credible. No notice, hearing, or terminal dues were given, contrary to sections 35, 41, 43 and 45 of the Act.

Under section 49(4) as read with section 50, the Claimant did not contribute to his termination, was young and would likely have continued working. Though the work was unskilled, the court found this an appropriate case for the maximum award. The pleaded wage legal notices were uncontroverted, so the gross monthly salary of Kshs.14,244.30 was adopted. Overtime, holiday and leave claims succeeded because the employer failed to produce records to disprove them, invoking section 107 of the Evidence Act.