Juma & 5 others v Mada Holdings Ltd t/a Baobab Sea Lodge Kilifi (Cause 2 of 2020) [2022] KEELRC 4159 (KLR)
The bottom line
#A Kenyan court dismissed five security guards' claims as too late under the Employment Act's strict three-year deadline, rewarding only one claimant.
What this practically means
#Executive summary
#Key legal issues
#Limitation of actions under section 90 of the Employment Act
The claims by the 1st, 2nd, 3rd, 5th and 6th Claimants were time barred; the court had no jurisdiction over them and dismissed them, even though limitation was not pleaded by the Respondent
Section 90 requires employment suits to be filed within three years of the cause of action. The causes of action arose in June 2016, yet the memorandum of claim was received on 24th June 2019, after the period lapsed. Limitation is a jurisdictional issue incapable of extension and may be raised suo moto. Only the 4th Claimant's claim, filed within time, survived.
Conversion of casual employment to term employment
The 4th Claimant, though hired as a casual, became a term employee by operation of section 37 of the Employment Act by the close of September 2012, entitling him to statutory protections including leave
The 4th Claimant was engaged on 13th August 2012 and worked continuously, as shown by casual labour cards for September and December 2012. Continuous engagement aggregating to a month converts casual employment into a term contract irrespective of the parties' intent, attracting the full benefits of the Employment Act.
Fairness of termination
The 4th Claimant's termination was unfair; there was neither justifiable cause nor due process under sections 40 and 41 of the Employment Act
The Respondent alleged desertion, but the evidence, including a Ministry of Labour letter summoning the parties to arbitrate the dispute, supported the Claimant's account. Even in desertion cases, the employer must take steps to ascertain the employee's whereabouts and issue a show-cause notice. No such evidence was tendered.
Leave entitlement
The 4th Claimant was entitled to salary in lieu of leave under section 28 of the Employment Act, computed for approximately three years and nine months
Having converted to a term employee, the Claimant was entitled to 21 working days' leave per year of uninterrupted service. The Respondent, which conceded no leave was taken and produced no leave records, could not rely on the casual status that had lapsed by operation of law.
House allowance
Judgment entered for unpaid house allowance at 15% of gross monthly salary for September 2012 to June 2016, the Respondent failing to discharge its burden of proof
Under section 10(7) of the Employment Act, where a term of contract is disputed and the employer fails to produce the written contract, the burden rests on the employer. The Respondent claimed staff housing was provided but produced no contract evidencing it, and its submissions were internally ambivalent.
Legal principles established
#- The limitation period in section 90 of the Employment Act is jurisdictional and incapable of extension by the court
- A court may raise the issue of limitation suo moto since it goes to jurisdiction
- A casual employee engaged continuously for working days aggregating to one month, or whose work cannot reasonably be completed within three months, converts to a term employee under section 37 of the Employment Act
- Even where desertion is alleged, an employer must follow due process, including issuing a notice to show cause, before terminating employment
- Where the employer fails to produce a written contract in dispute about a term, the burden of proving or disproving the disputed term rests with the employer under section 10(7) of the Employment Act
- Parties are bound by their pleadings and may not lead evidence to establish unpleaded facts
Court orders
#- 1.Declaration that the 4th Claimant's contract of service was unlawfully terminated by the Respondent
- 2.Compensation for unlawful termination equivalent to eight months' gross salary (Ksh. 9,000 x 8 = Ksh. 72,000) for the 4th Claimant
- 3.House allowance at 15% of gross monthly salary for the period September 2012 to June 2016, totaling Ksh. 60,750, for the 4th Claimant
- 4.Salary in lieu of leave for three years and nine months totaling Ksh. 33,750 for the 4th Claimant
- 5.Costs of the suit to the 4th Claimant
- 6.Interest on amounts awarded to the 4th Claimant from the date of institution of suit till payment in full
- 7.All monetary awards subject to applicable statutory deductions under section 49 of the Employment Act
- 8.All other prayers by the 4th Claimant not specifically mentioned deemed as not granted
- 9.Claims by the 1st, 2nd, 3rd, 5th and 6th Claimants dismissed as time barred
- 10.Costs of the lost claims by the 1st, 2nd, 3rd, 5th and 6th Claimants granted to the Respondent
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act; section 90 Employment Act limitation provision (constitutional/statutory basis otherwise not stated in judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Juma & 5 others v Mada Holdings Ltd t/a Baobab Sea Lodge Kilifi (Cause 2 of 2020) [2022] KEELRC 4159 (KLR)", Case Analysis (2022). Cause No 2 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/4159/eng@2022-09-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.