Maingi v Milcon’s Limited (Appeal E043 of 2022) [2023] KEELRC 811 (KLR)
The bottom line
#A driver paid fortnightly for 22 months was not a casual worker, so his employer owed him underpayments, notice pay, leave and a certificate of service.
What this practically means
#Executive summary
#Key legal issues
#Conversion of casual employment under Section 37 of the Employment Act
Continuous employment for 22 months with wages paid every two weeks converted the appellant's casual engagement into regular employment protected under Section 37
The court found no employer records of days worked or payment frequency. The facts of continuous work beyond a day and fortnightly pay triggered Section 37 conversion, entitling the appellant to minimum wage, notice and benefits. The trial court's finding that he remained a casual and failed to prove his case was erroneous.
Burden of proof under Sections 47 and 37 of the Employment Act
The trial court erred in placing the burden of proving validity of termination on the employee on these facts; the legal threshold under Section 47 read with Section 37 was misapplied
The court re-assessed the evidence as a first appeal. Given the absence of employer records and the Section 37 conversion, the trial court's dismissal on burden-of-proof grounds was in error; the employer could not rely on casual status to avoid statutory obligations.
Entitlement to notice pay, underpayments and leave
Notice pay of Ksh 29,169 based on the last minimum wage, total underpayments of Ksh 227,906, and annual leave pay of Ksh 43,753.50 awarded
Employment being on oral terms, the applicable wage was the minimum under the Wage Orders from January 2017 for a commercial vehicle driver. The court tabulated underpayments from January 2017 to October 2018, computed notice pay on the last wage, and leave pay on the basic wage.
Termination on operational grounds
The lay-off due to reduced work was a valid operational reason under Section 40 read with Section 45(5), but notice should have issued
The respondent's evidence of reduced work was not contested. The court held that an employer may terminate for operational requirements for good cause, subject to notice, which was awarded. Compensation for unfair termination beyond notice pay was not granted.
Certificate of Service
A certificate of service shall issue pursuant to Section 51 of the Employment Act
The court found the trial court erred in not making a finding on the certificate of service. Section 51 obliges an employer to issue a certificate at the end of employment, and this was made a final order.
Legal principles established
#- Payment of wages fortnightly instead of at the end of each day converts casual employment to employment protected under Section 37 of the Employment Act
- An employee converted under Section 37 is entitled to minimum wage, notice before termination and attendant benefits
Court orders
#- 1.The appeal is allowed and the judgment of the lower court set aside
- 2.Underpayment awarded at Ksh 227,906
- 3.Notice pay Ksh 29,169
- 4.Leave pay Ksh 43,753.50
- 5.The above dues shall be paid less Ksh 89,900 received by the appellant
- 6.The dues shall be subject to statutory deductions
- 7.A Certificate of Service shall issue
- 8.Each party shall bear own costs
- On appeal from
- Magistrates' Court (CMELRC Mombasa)
- CMELRC No 492 of 2018
- Jurisdiction invoked
- First appeal to the Employment and Labour Relations Court against judgment in CMELRC No 492 of 2018
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Maingi v Milcon’s Limited (Appeal E043 of 2022) [2023] KEELRC 811 (KLR)", Case Analysis (2023). Not stated in judgment (appeal from Mombasa CMELRC No 492 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/811/eng@2023-03-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.