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ELRCPartially AllowedCause No 2001 of 2017· [2023] KEELRC 1685 (KLR)

Molo v Ten Senses Africa Limited (Cause 2001 of 2017) [2023] KEELRC 1685 (KLR)

Employment and Labour Relations Court
13 July 2023
JGJACOB GAKERI
3,226 words in judgment
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The bottom line

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A Kenyan court ruled that an employer who keeps no written contracts or records cannot claim a worker was casual, and must prove desertion before calling a dismissal fair.

What this practically means

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Executive summary

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The Claimant sued for unfair dismissal and terminal dues, alleging she was employed as a General Labourer from July 2010 at Kshs.6,000 per month until November 2016 when the Respondent's Manager, Maria, terminated her employment by word of mouth. The Respondent admitted she was a casual labourer but denied terminating her, asserting she deserted duty in November 2016. The court framed three issues: the Claimant's employment status, whether the termination was unfair or she deserted, and entitlement to reliefs. On status, the court found the Respondent failed to prove casual employment, holding that under Section 37(1) of the Employment Act her contract was deemed monthly, given the employer's failure to produce a written contract, attendance records or proof of daily payment. On termination, the Respondent's witness adduced no evidence of the alleged desertion, no notice to show cause and no efforts to have the Claimant resume duty; the court adopted the Felistas Acheha Ikatwa principle on desertion and found the termination neither substantively justifiable nor procedurally fair. On reliefs, the court declared the dismissal unfair and awarded one month's pay in lieu of notice, house allowance at 15% of basic salary for three years, underpayment against the Regulation of Wages Orders for three years, and compensation equivalent to three months' gross salary under Section 49(1)(c). Claims for untaken leave, overtime and service/gratuity were declined for want of evidence. Costs of the suit and interest from the date of judgment were awarded to the Claimant, with counsel to compute the award within 30 days. Judgment delivered virtually at Nairobi on 13th July 2023 by Dr. Jacob Gakeri, Judge.

Key legal issues

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01

Casual status of the Claimant

Holding

Respondent failed to prove the Claimant remained a casual employee from 2010 to November 2016; her employment was deemed monthly under Section 37(1)

Reasoning

The Respondent kept no attendance records, produced no written contract and no evidence of payment at day's end. The Claimant was paid monthly at Kshs.6,000. The seasonal nature of the macadamia business did not avail the employer, which bore the record-keeping obligation and adduced no evidence of service breaks.

p. 5
02

Unfair termination versus desertion

Holding

The Claimant was dismissed unfairly; the allegation of desertion was unproven

Reasoning

The Respondent's witness adduced no evidence of the alleged desertion, no dates, no steps to contact the Claimant, no notice to show cause and no report to the Labour Office. Termination must be substantively justified and procedurally fair under Sections 41, 43 and 45 of the Employment Act; neither was demonstrated.

p. 6
03

Entitlement to reliefs

Holding

Declaration of unfair termination granted; notice pay, house allowance, underpayment and 3 months' compensation awarded; leave, overtime and gratuity declined for want of proof

Reasoning

The court assessed each head of claim on the evidence. Leave, overtime and service/gratuity claims failed for want of evidence. Notice pay, house allowance at 15% and underpayment were awarded but limited to three years. Compensation under Section 49(1)(c) was fixed at three months' gross salary considering the length of service and the Claimant's conduct.

p. 8

Legal principles established

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  • Where an employer fails to produce a written contract, the burden of proving or disproving an alleged term of employment is on the employer
  • A casual employee who works continuously for the equivalent of not less than one month is deemed to be employed on monthly wages
  • An employer alleging desertion must prove efforts made to have the employee resume duty, including a notice that termination on account of desertion is being considered
  • Termination must be both substantively justifiable and procedurally fair
  • Underpayment of the statutory minimum wage violates fair labour practices and the employee is entitled to recoup the underpayment

Court orders

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  1. 1.Declaration that termination of the Claimant's employment was unfair
  2. 2.One month's salary in lieu of notice
  3. 3.Unpaid house allowance for 3 years
  4. 4.Underpayment for 3 years
  5. 5.Equivalent of 3 months' gross salary
  6. 6.Counsels to compute and file in court for adoption within 30 days
  7. 7.Costs of this suit
  8. 8.Interest at court rates from date of judgment till payment in full

Authorities

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Legislation

  • Employment Act, 2007Section 2
  • Employment Act, 2007Section 10(7)
  • Employment Act, 2007Section 35(1)(c)
  • Employment Act, 2007Section 37(1)
  • Employment Act, 2007Sections 41, 43, 45(2), 47(1), 49(1)(c)
  • Regulation of Wages (General) (Amendment) OrdersMay 2010, May 2011, 1st May 2012, May 2013, 1st May 2015
  • Constitution of Kenya, 2010Articles 159(2)(d) and 48
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (6)

  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
  • Felistas Acheha Ikatwa v Charles Peter Otieno
    [2018] eKLR
  • Evans Ochieng Oluoch v Njimia Pharmaceuticals Ltd
    [2018] eKLR
  • Joseph Nzioka v Smart Coatings Ltd
    [2017] eKLR
  • Charles Kithuka & 19 others v DPL Festive Ltd
    [2022] eKLR
  • Seabolo v Belgravia Hotel
    [1997] 6 BLLR 829 (CCMA)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment claim)

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, "Molo v Ten Senses Africa Limited (Cause 2001 of 2017) [2023] KEELRC 1685 (KLR)", Case Analysis (2023). Cause No 2001 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1685/eng@2023-07-13

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