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ELRCPartially AllowedNot stated in the excerpt· [2023] KEELRC 1695 (KLR)

Cerapack Products Limited v Makau (Employment and Labour Relations Appeal E100 of 2022) [2023] KEELRC 1695 (KLR)

Employment and Labour Relations Court
6 July 2023
OKOcharo Kebira
4,624 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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A Kenyan employer's appeal only partly succeeded: the worker's awards for underpayment and unpaid leave were cut to the three-year legal limit.

What this practically means

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Executive summary

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This is a first appeal to the Employment and Labour Relations Court against a trial Magistrate's judgment of June 17, 2022 in Milimani ELRC Cause No E1200 of 2021, which had allowed a claimant's claim for unlawful termination arising from a March 9, 2020 dismissal. The appellant employer advanced six grounds, compressed into two issues: whether the respondent was wrongfully terminated, and whether the reliefs awarded were merited. The appellant contended the respondent was a casual employee engaged on three-month fixed-term contracts who absconded duty; the respondent maintained she was a term employee. The court, guided by the role of a first appellate court, held that the appellant had never pleaded casual employment in its defence, and a party is bound by its pleadings; evidence at variance with pleadings goes to no issue. On the merits, the court found the respondent did not fit the statutory definition of a casual employee, having worked continuously for nine years, and that summary dismissal grounds under section 44(4) of the Employment Act were not established, entitling her to notice pay. The court accepted that the respondent was paid below the minimum wage under the applicable wages orders but held that the trial Magistrate's awards for underpayment (2013-2020) and unpaid leave (seven years) breached the three-year limitation in section 90 of the Employment Act. The appeal succeeded only to a limited extent: the underpayment award was reduced to Kshs 109,984 and the unpaid leave award to Kshs 22,050. Each party was ordered to bear its own costs of the appeal. The court also criticised the trial judgment's structure as lacking the characteristics of an ideal judgment.

Key legal issues

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01

Whether the Respondent was a casual employee

Holding

She was not; she worked continuously for nine years and was not engaged or terminable on a day-to-day basis

Reasoning

The court applied the statutory definition of a casual employee and found the Appellant had neither pleaded nor proved daily engagement terminable within twenty-four hours. Fortnightly payment computed on a daily rate was merely a computation formula. Further, casual status was never pleaded, so the defence was not open to the Appellant.

p. 6
02

Whether the summary dismissal was lawful

Holding

No; the grounds in section 44(4) were not established, so notice pay was due under section 36

Reasoning

The material before the trial court did not establish grounds for summary dismissal under section 44(4) of the Employment Act. Section 44(2) prohibits termination without notice save under that section. The Appellant was therefore liable for one month's salary in lieu of notice.

p. 8
03

Whether the awards for underpayment and unpaid leave were excessive

Holding

Yes, partially; both were reduced to conform with the three-year limitation period in section 90

Reasoning

Section 90 of the Employment Act bars employment claims brought beyond three years. The trial Magistrate awarded underpayments for 2013-2020 and leave for seven years, contrary to section 90. The court limited recovery to 2017-2020, reducing underpayments to Kshs 109,984 and leave to Kshs 22,050.

p. 8

Legal principles established

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  • A party is bound by its pleadings; evidence at variance with pleadings goes to no issue
  • Wages order minima are matters of law requiring no evidential proof and cannot be contracted out
  • Employment claims are subject to the three-year limitation under section 90 of the Employment Act

Court orders

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  1. 1.The award by the trial Magistrate under the head 'underpayments' is reduced to Kshs 109,984/-
  2. 2.The award under the head 'unpaid leave' is reduced to Kshs 22,050/-
  3. 3.Each party shall bear its own costs of the appeal

Authorities

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Legislation

  • Employment Actsection 2 (definition of casual employee)
  • Employment Actsection 35
  • Employment Actsection 36
  • Employment Actsection 37
  • Employment Actsection 41
  • Employment Actsections 43, 44 and 45
  • Employment Actsection 49(1)(c)
  • Employment Actsection 90
  • Labour Institutions Act, 2007section 48
  • Limitation of Actions Act (Cap 22)section 4(1)
  • Regulations of Wages (General) (Amendment) Order2017 order - minimum wage Kshs 12,926.55
  • Wage Order2018 order - minimum wage Kshs 13,572
  • Constitution of KenyaArticles 159(2)(d) and 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure Act (Chapter 21)Section 1B

Cases cited (10)

  • Joseph Njoroge Kimani v Summer Rep
    (2014) eKLR
  • Hahn v Sign
    (1985) KLR 716
  • Silas Mutwiri vs Haggai Multi-Cargo Handling Services Limited
    (2013) eKLR
  • Rapid Kate Services Limited v John Mutisya & 2 others
    (2018) eKLR
  • Silas Wandera v Principal Barister Girls High School
    (2020) eKLR
  • Prudential Assurance Company of Kenya Limited v Sukhinder Sigh Jutley and Another
    (2007) eKLR
  • Selle v Associated Motor Boat Company Ltd
    (1968) EA 123
  • Josephine Mwende vs University of Nairobi
    [2021] eKLR
  • Adetoun Oladeji [NIG] Ltd vs Nigeria Breweries PLC
    S.C 91/2002
  • Malawi Railways Ltd v Nyasulu
    [1998] MWSC
On appeal from
Milimani Commercial Court (Employment and Labour Relations Cause)
E1200 of 2021
Jurisdiction invoked
First appellate jurisdiction over the trial Magistrate's judgment in an employment cause

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, "Cerapack Products Limited v Makau (Employment and Labour Relations Appeal E100 of 2022) [2023] KEELRC 1695 (KLR)", Case Analysis (2023). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1695/eng@2023-07-06

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