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ELRCAllowedMemorandum of Claim dated June 14, 2016 (Mombasa)· [2023] KEELRC 420 (KLR)

Masika & 2 others v Revital Health Care [EPZ] Ltd (Employment and Labour Relations Cause 631 of 2016) [2023] KEELRC 420 (KLR)

Employment and Labour Relations Court
16 February 2023
1,999 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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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

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Executive summary

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Three Claimants sued the Respondent alleging that, having been engaged as casual workers at its Mombasa office between 2009 and 2011, they were terminated in May 2015 without notice, reasons or terminal benefits, in breach of Articles 41 and 47(1) of the Constitution and Sections 41, 43, 45 and 51 of the Employment Act 2007. They sought notice pay, leave pay, service pay and twelve months' compensation, totalling Kshs 1,142,190. The Respondent denied terminating them, contending they absented themselves from work and were paid all dues, but called no witness at trial despite service with a hearing notice; its case closed without evidence. Nzei J found the Claimants' evidence uncontroverted, applying authority that a party failing to adduce evidence leaves pleadings as mere statements of fact. On the issues framed, the court held that although the Claimants began as casuals, continuous service of four to six years converted their contracts by operation of Section 37 of the Employment Act into term contracts attracting Section 35(1)(c). No reasons or procedure under Sections 41, 43 and 45 were demonstrated, and no termination notices issued; the terminations were declared unfair under Section 45(4)(b). Judgment was entered for the 1st, 2nd and 3rd Claimants in the sums of Kshs 380,730, 354,270 and 407,190 respectively (total Kshs 1,142,190), subject to statutory deductions under Section 49(2), with certificates of service to issue within thirty days under Section 51, plus costs and interest at court rates. Judgment was delivered at Mombasa on February 16, 2023 via Microsoft Teams owing to COVID-19 restrictions.

Key legal issues

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01

Status of the Claimants - casual or term employees

Holding

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).

Reasoning

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.

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02

Fairness of the termination

Holding

The termination was unfair under Section 45(4)(b): no reason was given, no notice issued, and no Section 41 procedure followed.

Reasoning

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.

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03

Entitlement to reliefs

Holding

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.

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.Judgment entered in favour of the 1st Claimant for Kshs 380,730
  2. 2.Judgment entered in favour of the 2nd Claimant for Kshs 354,270
  3. 3.Judgment entered in favour of the 3rd Claimant for Kshs 407,190 (total Kshs 1,142,190)
  4. 4.The awarded sum shall be subject to statutory deductions pursuant to Section 49(2) of the Employment Act
  5. 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. 6.The Claimants are awarded costs of the suit and interest at Court rates

Authorities

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Legislation

  • Constitution of KenyaArticles 41 and 47(1)
  • Employment Act 2007Sections 35(1)(c), 37(1), 37(3), 41, 43(1) & (2), 45(2), 45(4)(b), 49(2), 51
  • ILO Convention 158 on Termination of Employment1982

Cases cited (5)

  • Trust Bank Limited -vs- Paramount Universal Bank Limited & 2 Others
    Nairobi [Milimani] HCCC No 1243 of 2021
  • Chrispine Otieno Caleb -vs- Attorney General
    [2014] eKLR
  • Francis Ndirangu Wachira -v- Betty Wairimu Maina
    [2019] eKLR
  • Silas Mutwiri -vs- Haggai Multi-cargo Handling Services Limited
    (2013) eKLR
  • Kesi Mohammed Salim -vs Kwale International Sugar Co Ltd
    [2013] eKLR
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

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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, "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.