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ELRCDismissedNot stated in judgment· [2022] KEELRC 1369 (KLR)

Gonna v Mistry V.Naran Mulji & Co (Appeal 81 of 2021) [2022] KEELRC 1369 (KLR)

Employment and Labour Relations Court
8 July 2022
1,874 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This was a first appeal to the Employment and Labour Relations Court at Mombasa against part of a trial court judgment delivered on 28.10.2021. The appellant, a security officer engaged at Kshs 500 per day, claimed he was forced to resign on 05.02.2019 due to non-payment of salary and sought declaratory relief, 12 months' compensation for constructive dismissal and terminal dues of Kshs 965,975.91. The respondent admitted employing him on casual, need basis and denied continuous employment, forced resignation and the claimed wage rate. The appeal challenged the trial court's findings that the employment never converted under section 37 of the Employment Act, that there was no constructive dismissal, and that most reliefs failed. Re-evaluating the evidence, the court found the appellant's account seriously contradictory (7 days pleaded versus 6 days testified; unexplained deductions while claiming refunds) and preferred the respondent's consistent account of daily, need-basis engagement, holding that conversion conditions under section 37 were not established. The court found the resignation voluntary; the resignation letter was never exhibited and no notice to produce was issued. Further, all claimed dues were continuing injuries ceasing on 05.02.2019, and the suit filed on 11.03.2020 fell outside the 12-month limitation period under section 90 of the Employment Act. The appeal was dismissed with costs to the respondent.

Key legal issues

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01

Conversion of casual employment to regular term employment under section 37 of the Employment Act

Holding

Conversion was not established; the claimant's own admissions and contradictions confirmed a casual, need-basis engagement

Reasoning

The appellant pleaded he worked 7 days a week but testified he worked 6 days with Sundays off. He admitted in cross-examination he was a casual worker paid daily and did not claim overtime. The respondent's witness testified he worked on need basis and never more than a week continuously. The employer's consistent account was preferred on a balance of probability, so conditions for conversion under section 37 were not met.

p. 4
02

Whether the resignation amounted to unfair constructive dismissal

Holding

No constructive dismissal; the resignation was voluntary and the resignation letter was not even exhibited

Reasoning

The court found the appellant willingly drafted and presented his resignation letter. His grievance was non-payment of terminal dues, not coercion. The resignation letter was not exhibited and no notice to produce it was given, so the claim of forced resignation failed. The trial court's finding that there was no coercion was upheld.

p. 4
03

Limitation under section 90 of the Employment Act

Holding

All claimed dues were continuing injuries that ceased on 05.02.2019; the suit filed on 11.03.2020 was filed out of time

Reasoning

The court examined the claims for salary arrears, leave, underpayment, NHIF/NSSF refunds, rest days, public holidays and overtime and classified them all as continuing injuries ceasing on 05.02.2019. The suit filed on 11.03.2020 fell outside the 12-month limitation period prescribed by section 90, rendering the entire suit without merit.

p. 4

Legal principles established

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  • On a first appeal the court re-evaluates the evidence while bearing in mind that it did not hear the evidence as the trial court did
  • A claimant whose account is seriously contradictory cannot be preferred on a balance of probability over a consistent account
  • A casual employee engaged and paid on a need basis does not convert to statutory terms under section 37 unless continuous service for the statutory period is established
  • Claims arising from an employment relationship are subject to the 12-month limitation period under section 90 of the Employment Act

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal awarded to the respondent

Authorities

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Legislation

  • Employment ActSection 37
  • Employment ActSection 90
On appeal from
Magistrates' Court (trial court)
Not stated
Jurisdiction invoked
First appeal to the Employment and Labour Relations Court

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Gonna v Mistry V.Naran Mulji & Co (Appeal 81 of 2021) [2022] KEELRC 1369 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1369/eng@2022-07-08

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