Kibogo & 83 others v Carribean Contractors Company Ltd (Employment and Labour Relations Appeal E004 of 2022) [2022] KEELRC 1578 (KLR)
The bottom line
#Kenya's Employment Court dismissed 84 quarry workers' appeal because they couldn't prove continuous monthly employment, confirming casual workers must prove service to gain full protections.
What this practically means
#Executive summary
#Key legal issues
#Whether the 55th, 78th and 83rd Appellants proved employment with the Respondent
They failed to prove employment; the Respondent's specific denial raised a joinder of issue which their general witness statements did not rebut
The Respondent specifically denied employing the three, raising a joinder of issue. Pleadings do not constitute evidence, and PW1 and PW2's witness statements were general, containing no particulars of the three individuals' employment. Neither the three Appellants nor any other witness testified on oath to prove their employment, and the unsworn witness statement of the 55th Appellant was never adopted, so it could not be evidence. Their cases therefore had to fail.
Whether unsworn witness statements of individual Appellants could be treated as evidence
No - witness statements qualify as evidence only if adopted on oath during trial or prepared as affidavits
The court held that evidence must be taken on oath or affirmation, except where the law permits otherwise. A party relying on a witness statement must either file a comprehensive statement and introduce it under oath, or prepare it as an affidavit. Since PW1 and PW2 neither filed composite statements covering the other Appellants nor adopted their individual statements while under oath, and no affidavit evidence was filed, the unsworn statements were technically of no evidential value.
Whether the Appellants' casual employment converted to term contracts under section 37(1) of the Employment Act
No - none of the Appellants demonstrated continuous service for a full calendar month, so they remained casual employees
Section 37 provides that casual contracts graduate into term contracts where the employee serves continuously for at least one month or the task requires at least three months' work. The Appellants' own witnesses confirmed daily engagement and weekly payment, and the Respondent's records showed no Appellant clocked a continuous full month. Weekly rather than monthly payment further evidenced casual terms. Casual employees are terminable without notice and not entitled to term-contract benefits such as leave.
Whether the trial court erred in finding a boycott of work not pleaded by the Respondent
The trial court was wrong to make that unpleaded finding, but its ultimate conclusion was upheld because the Appellants were demonstrably not on duty on 2nd August 2020
The court agreed that parties are bound by their pleadings and that the Respondent never pleaded that the Appellants withdrew labour in solidarity. However, since the attendance register showed the Appellants last worked on 28th July 2020 and were absent on 2nd August 2020, the assertion of termination while on duty failed irrespective of the reason for absence. The trial court's ultimate conclusion of no unfair termination was therefore upheld.
Whether failure of most Appellants to testify was fatal
Yes - where employment was disputed and no compliant statements or affidavits were filed, individual testimony or admissible evidence was required
Representative witnesses PW1 and PW2 tendered no evidence specific to the other Appellants' claims, and no affidavit evidence was filed under rule 21 of the ELRC Rules. The only remaining route was for the Appellants to testify in person, which they did not do. Covid-19 containment regulations could not excuse this, since the choice of representation was the Appellants' own and the court made no record of excluding them.
Legal principles established
#- A joinder of issue operates as a denial of every material allegation of fact made in the pleading
- The duty to prove existence of an employer-employee relationship lies with the person alleging employment
- Pleadings do not constitute evidence; unsworn witness statements not adopted on oath cannot be relied on as evidence
- It is a misinterpretation of section 37(1) of the Employment Act to hurriedly deem a casual employee paid weekly and engaged for more than 24 hours a permanent employee
- Casual employment converts to a term contract only where the employee serves continuously, without break, for at least one calendar month
- Parties are bound by their pleadings and cannot urge a case beyond the pleadings
- A court on first appeal must re-evaluate the evidence but be slow to upset findings of fact reached against the grain of the evidence
Court orders
#- 1.Dismissal of the appeal
- 2.Costs of the appeal awarded to the Respondent
- On appeal from
- Magistrate's Court (Kilifi)
- Kilifi SPMEC No. E06 of 2020
- Jurisdiction invoked
- First appeal to the Employment and Labour Relations Court from the magistrate's court (ELRC Procedure Rules regime; Employment Act matters)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kibogo & 83 others v Carribean Contractors Company Ltd (Employment and Labour Relations Appeal E004 of 2022) [2022] KEELRC 1578 (KLR)", Case Analysis (2022). Appeal from Kilifi SPMEC No. E06 of 2020; Memorandum of Appeal dated 24th March 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1578/eng@2022-07-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.