Tabuche v County Government of Kakamega & 4 others (Employment and Labour Relations Cause 23 of 2021) [2023] KEELRC 685 (KLR)
The bottom line
#A Kenyan court ruled a 13-year 'casual' worker at Bungoma County was actually permanent, entitling him to back pay, leave, housing allowance, and reinstatement.
What this practically means
#Executive summary
#Key legal issues
#Status of the claimant's employment - casual or permanent
Having worked continuously from 8th March 2004 to 20th January 2017, the claimant's employment was converted to permanent and pensionable terms under section 37 of the Employment Act
The court found on a balance of probabilities that the claimant worked continuously despite renewed short contracts. The respondents' payment schedule for August-October 2015 was insufficient proof of breaks, as a payment schedule is not synonymous with an attendance list. Both defence witnesses contradicted each other on contract duration (3 vs 6 months). The 13-year engagement could not be treated as casual employment, and the contracts assumed permanency under section 37.
Entitlement to minimum wage, leave and housing allowance
The claimant was underpaid against gazetted general wages orders and was entitled to accrued annual leave and 15% housing allowance, computed from available wage orders
Having converted the employment to permanent terms under section 37(3), contractual exclusions of statutory benefits were irrelevant. Leave non-payment and absence of housing allowance were admitted by the respondents. The court distinguished the Court of Appeal decision in Nanyuki Water, where special damages failed for want of pleading, because here the claimant specifically pleaded the leave and housing claims. Awards were computed as general labourer from the 2009-2013 wage orders produced.
Lawfulness of termination and remedies
Termination upon filing suit was unlawful for want of compliance with section 41; the court ordered re-engagement or, in the alternative, notice pay, service pay and 12 months' compensation
The suit was instituted while the claimant was still in employment and there was no evidence of compliance with the mandatory procedural requirements of section 41 before termination. The respondents justified termination solely on the claimant having sued them. The court found the three months of NSSF remittance insufficient social security, invoked the transitional clause of the 2010 Constitution binding the 1st respondent to inherited employees, and awarded service pay under section 35 plus 12 months' compensation.
Legal principles established
#- A contract of service purporting to pay an employee below gazetted minimum wages is illegal
- Long-term casual engagement of an employee amounts to an unfair labour practice
- Under section 37 of the Employment Act, continuous casual employment of long duration is deemed converted to a monthly-paid contract
- An employer must comply with the procedural requirements of section 41 before terminating an employee; failure renders termination unlawful
Court orders
#- 1.A declaration that Section 37 of the Employment Act, 2007 applies to the employment of the Claimant such that his casual employment was converted into a contract of service where wages are paid monthly and section 35(1)(c) applies
- 2.A declaration that the Respondents had engaged in unfair labour practices against the claimant
- 3.A declaration that the claimant was underpaid under the general wages orders, with award of underpayments of salary Kshs. 190,550.40
- 4.Award on unpaid housing allowance of Kshs. 65,502.36
- 5.Payment of salary in lieu of leave not taken for 13 years, awarded at Kshs. 34,700.87
- 6.Payment of Kshs. 3,478.67 for 20 days worked in January 2017
- 7.A declaration that the Claimant's employment was unlawfully terminated on instituting the suit
- 8.An order for re-engagement of the Claimant on permanent basis and issuance of appointment letter in compliance with the current general wages order within 14 days of the judgment
- 9.In the alternative to re-engagement: one month's salary in lieu of notice of Kshs. 5,218; service pay of Kshs. 33,917; and compensation of 12 months' salary for unfair termination at Kshs. 62,616.00
- 10.Costs of the suit assessed at Kshs. 50,000 awarded to the Claimant
- 11.Interest at court rates from the date of judgment
- Jurisdiction invoked
- Employment Act, section 87 (complaints to the Industrial Court); matter pleaded as a memorandum of Claim under the Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tabuche v County Government of Kakamega & 4 others (Employment and Labour Relations Cause 23 of 2021) [2023] KEELRC 685 (KLR)", Case Analysis (2023). Employment and Labour Relations Cause (memorandum of Claim dated 3rd January 2017) - Bungoma ELRC. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/685/eng@2023-03-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.