Masika & 2 others v Revital Health Care [EPZ] Ltd (Employment and Labour Relations Cause 631 of 2016) [2023] KEELRC 420 (KLR)
The bottom line
#Three casual workers in Mombasa won over Kshs 1.1 million because years of continuous work made them full employees entitled to fair treatment before dismissal.
What this practically means
#Executive summary
#Key legal issues
#Status of the Claimants - casual or term employees
Though initially engaged as casuals, their contracts were converted by operation of law under Section 37 of the Employment Act into term contracts with monthly wages, engaging Section 35(1)(c).
The Claimants pleaded initial casual engagement but worked continuously for five, four and six years respectively. Section 37(1) deems a casual employee who works the equivalent of not less than one month to be on monthly terms, and Section 37(3) confers full statutory entitlements. The court aligned itself with prior decisions holding that continuous casual work beyond the statutory threshold converts the engagement to a term contract.
Fairness of the termination
The termination was unfair under Section 45(4)(b): no reason was given, no notice issued, and no Section 41 procedure followed.
Section 41 prescribes a mandatory procedure before termination on grounds of misconduct, poor performance or incapacity, and Sections 43 and 45(2) require valid reasons. The Respondent gave no evidence and adduced no reasons; no termination notices under Section 35(1)(c) were issued. Against this uncontroverted posture, the court found the terminations failed the tests of justice and equity and declared them unfair.
Entitlement to reliefs
The Claimants proved their claims on a balance of probability and were awarded the sums claimed: notice pay, leave pay, service pay and twelve months' compensation for unfair termination.
With the Respondent's case closed without evidence, the Claimants' testimony was unchallenged. The court, having considered written submissions, found the claims proved and awarded each Claimant the aggregate figures pleaded, subject to statutory deductions under Section 49(2), plus certificates of service under Section 51, costs and interest.
Legal principles established
#- A casual employee who works continuously for a period equivalent to not less than one month, or performs work not completable within three months, is by operation of Section 37(1) of the Employment Act deemed to be employed on monthly-wage terms, and Section 37(3) entitles the employee to full statutory terms of service.
- Where a respondent adduces no evidence, the claimant's uncontroverted evidence stands unchallenged and the respondent's pleadings remain mere statements of fact.
- Termination without a reason, without notice under Section 35(1)(c) and without the procedure under Section 41 is unfair under Section 45(4)(b) of the Employment Act.
Court orders
#- 1.Judgment entered in favour of the 1st Claimant for Kshs 380,730
- 2.Judgment entered in favour of the 2nd Claimant for Kshs 354,270
- 3.Judgment entered in favour of the 3rd Claimant for Kshs 407,190 (total Kshs 1,142,190)
- 4.The awarded sum shall be subject to statutory deductions pursuant to Section 49(2) of the Employment Act
- 5.The Respondent shall issue the Claimants with appropriate Certificates of Service pursuant to Section 51 of the Employment Act within thirty days of the judgment
- 6.The Claimants are awarded costs of the suit and interest at Court rates
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act 2007 and the Constitution (Articles 41 and 47(1) pleaded by the Claimants)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Masika & 2 others v Revital Health Care [EPZ] Ltd (Employment and Labour Relations Cause 631 of 2016) [2023] KEELRC 420 (KLR)", Case Analysis (2023). Memorandum of Claim dated June 14, 2016 (Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/420/eng@2023-02-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.