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ELRCPartially AllowedMemorandum of Claim dated 7th June 2016· [2023] KEELRC 483 (KLR)

Mwashighadi v Steel Structures Limited (Cause 1088 of 2016) [2023] KEELRC 483 (KLR)

Employment and Labour Relations Court
24 February 2023
OKOcharo Kebira
3,983 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer who calls a dismissal 'desertion' without evidence must pay damages, after a court ruled long-serving casual workers deserve full Employment Act protections.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a casual labourer from 2008 until his termination on or about 30th September 2014, sued for a declaration that his dismissal was unlawful, unfair and un-procedural, terminal dues of Ksh 1,401,895, damages for lost salaries and allowances, a certificate of service, costs and interest. The Respondent maintained that the Claimant deserted duty on 26th September 2014 and was therefore not entitled to any relief. The court framed four issues: the nature of the employment, the fairness of the termination, entitlement to reliefs, and costs. It held that although the Claimant was engaged as a casual labourer, continuous service of approximately six years converted his employment by operation of law into a term contract under sections 2 and 37 of the Employment Act. On the manner of termination, the court preferred the Claimant's account that his supervisor Mr. Mburu verbally dismissed him, noting that the Respondent failed to call Mr. Mburu and produced no evidence of efforts to trace an allegedly absconded employee. The termination was found both procedurally and substantively unfair, as no notice, hearing or consideration of representations occurred, and no valid reason was proved. The court awarded notice pay of Ksh 13,740, five days' unpaid salary of Ksh 3,435, seven months' compensation of Ksh 96,180 and one year's untaken leave compensation of Ksh 9,618, with interest and costs. Claims for severance pay, exemplary damages and post-termination lost salaries were declined. Judgment dated 24th February 2023.

Key legal issues

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01

Nature of employment

Holding

Though engaged as a casual labourer, the Claimant's employment converted by operation of law to a term contract after continuous work of about six years

Reasoning

Section 2 defines a casual employee as one engaged at the end of each day for not longer than twenty-four hours. Section 37 converts casual employment to a term contract where work is continuous for a month or cannot be completed within three months. Having worked continuously for approximately six years, the Claimant enjoyed the full protections of the Employment Act.

p. 5
02

Manner of termination

Holding

The court accepted the Claimant's account that his supervisor Mr. Mburu verbally dismissed him, rejecting the desertion narrative

Reasoning

The parties advanced diametrically opposite accounts. The Respondent's witnesses could not confirm whether Mr. Mburu dismissed the Claimant, yet Mr. Mburu, the ideal witness to rebut the Claimant, was not called and no explanation was given for his absence. The Respondent's assertion of desertion was unsupported by evidence of efforts to trace the Claimant.

p. 6
03

Substantive and procedural fairness

Holding

Termination was both procedurally and substantively unfair

Reasoning

The Respondent's witnesses confirmed the Claimant was never issued notice in writing nor called for a disciplinary hearing, so all three mandatory procedural components were absent. The Respondent also failed to discharge its burden under section 45 of demonstrating a valid and fair reason for termination, rendering the termination without substantive justification.

p. 6
04

Compensation quantum

Holding

Seven months' gross salary awarded as compensation for unfair termination under section 49

Reasoning

In exercising the discretion under section 49, the court considered that the termination lacked a valid and fair reason, procedural fairness was absent, the Claimant had served approximately six to eight years, and there was no evidence that he contributed to the termination. Twelve months were sought but seven months' gross pay of Ksh 96,180 was awarded.

p. 7
05

Exemplary damages

Holding

Claim for exemplary damages declined

Reasoning

Relying on Rookes v Barnard, exemplary damages are awarded only in exceptional cases of oppressive, arbitrary or unconstitutional action by government servants or where the defendant's conduct was calculated to profit himself beyond the compensation payable. Neither ingredient existed here, so the threshold was not met.

p. 8

Legal principles established

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  • Casual employment converts to a term contract by operation of law where the casual labourer works continuously for a month
  • An employer asserting desertion must demonstrate efforts made to trace the employee and notify them of prospective disciplinary action
  • Termination procedure under the Employment Act comprises notification, hearing and consideration components, all mandatory

Court orders

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  1. 1.A declaration that the termination of the claimant was both procedurally and substantively unfair
  2. 2.Salary in lieu of notice of Ksh 13,740
  3. 3.Unpaid salaries for the 5 days in September of Ksh 3,435
  4. 4.7 months' salary compensation of Ksh 96,180
  5. 5.Compensation for untaken leave days of Ksh 9,618
  6. 6.Interest at court rates on the above granted sums from the date of judgment till full payment
  7. 7.Costs of the suit to the Claimant

Authorities

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Legislation

  • Employment Actsection 2
  • Employment Actsection 35(1)(c)
  • Employment Actsection 35(5)
  • Employment Actsection 36
  • Employment Actsection 37
  • Employment Actsection 45
  • Employment Actsection 47(5)
  • Employment Actsection 49
  • Employment Actsection 90
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (6)

  • Aron Torres v Pont Lisa's Industrial Port Development Corporation Ltd
    (2005)
  • Chirau Ali Mwakwere v Royal Media Services Ltd
    (2004)
  • Judith Atieno Owuor v Sameer Agriculture and Livestock Limited
    (2020) eKLR
  • Rookes v Barnard
    [1964] I ALL ER 367
  • Haria Industries v P.J. Products Limited
    [1970] EA 367
  • Obongo & another v Municipal Council of Kisumu
    [1971] EA 91
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act 2007 (claim for unfair termination)

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, "Mwashighadi v Steel Structures Limited (Cause 1088 of 2016) [2023] KEELRC 483 (KLR)", Case Analysis (2023). Memorandum of Claim dated 7th June 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/483/eng@2023-02-24

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