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ELRCPartially AllowedCause No 1089 of 2016· [2023] KEELRC 2070 (KLR)

Ngure v Steel Structures Limited (Employment and Labour Relations Cause 1089 of 2016) [2023] KEELRC 2070 (KLR)

Employment and Labour Relations Court
9 August 2023
3,117 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that 'casual' workers employed continuously for months become permanent employees by law, and employers must prove desertion before treating absent workers as dismissed.

What this practically means

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Executive summary

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The Claimant sued the Respondent for unlawful and unfair termination, claiming he was engaged as a casual labourer in September 2009 at Kshs 17,910 per month, injured at work in October 2014, and verbally dismissed on January 12, 2015 by the Respondent's Assistant Personnel Manager after presenting a hospital bill of Kshs 200,000 for surgery. The Respondent admitted employment but denied the 2009 start date, contending the Claimant deserted duty on June 8, 2015 and failed to return company items. The Claimant testified and produced his NSSF member statement showing continuous contributions from 2009 to 2015; the Respondent's witness admitted engagement on and off but produced no documentation. The court framed three issues: status of employment, fairness of termination, and entitlement to reliefs. On the first, relying on Section 37 of the Employment Act and the Allogoh and Nanyuki Water decisions, the court held the casual engagement was deemed converted into a term contract with monthly wages. On the second, applying Milano Electronics, James Okeyo and Godfrey Anjere, the court held desertion cannot close a contract until the employer acts on it; the Respondent failed to prove abscondment or justify the termination under Sections 45 and 47(5), the Claimant's account being unchallenged. On reliefs, the Claimant was awarded one month's salary in lieu of notice and six months' salary as compensation, totaling Kshs 125,370, plus costs, interest at court rates from judgment, and a certificate of service. Claims for six years' leave, severance pay, exemplary damages and future salaries were declined as speculative.

Key legal issues

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01

Conversion of casual employment under Section 37 of the Employment Act

Holding

The Claimant's casual employment was deemed converted into a term contract with monthly wages, evidenced by continuous NSSF/NHIF contributions from 2009 to 2015.

Reasoning

Both parties admitted the Claimant was employed as a casual labourer. The Claimant produced his NSSF member statement showing continuous annual contributions from 2009 to 2015, while the Respondent produced no documentation to support its assertion of intermittent engagement. Applying Allogoh and Nanyuki Water, the court found continuous work and monthly wages, triggering conversion under Section 37.

p. 4
02

Unfair and unlawful termination versus desertion

Holding

The Respondent failed to prove abscondment or to justify the termination; the Claimant's account of verbal dismissal after presenting a hospital bill was not challenged evidentially.

Reasoning

The Respondent alleged desertion but admitted it took no steps to trace the Claimant and called no witnesses to the alleged dismissal. Citing Milano Electronics and Godfrey Anjere, the court held that desertion cannot close a contract until the employer acts on it and must show steps to warn the employee. The employer offered no substantive or procedural justification, so the termination was unfair under Sections 45 and 47(5).

p. 5
03

Entitlement to reliefs

Holding

The Claimant was awarded one month's salary in lieu of notice, six months' salary as compensation, costs, interest, and a certificate of service; other heads were declined as speculative.

Reasoning

Having succeeded on the first two issues, the Claimant was entitled to some reliefs. The court awarded notice pay of Kshs 17,910 and compensation of six months' salary (Kshs 107,460) considering his period of service, totaling Kshs 125,370. Leave for six years and claims for severance, exemplary damages and future salaries were unsupported and declined.

p. 7

Legal principles established

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  • A casual employee who works continuously for the equivalent of one month or more and performs work not completable within three months is deemed under Section 37 of the Employment Act to be employed on monthly wages, converting the casual engagement into a term contract.
  • Desertion does not of itself terminate a contract of service; the employer must act on it, including demonstrating steps taken to alert the employee that dismissal would result from unauthorised absenteeism.
  • Under Section 47(5) of the Employment Act the employee bears the burden of proving unfair termination, which shifts to the employer to justify the termination once a prima facie case is made.

Court orders

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  1. 1.One month salary in lieu of notice of Kshs 17,910/-
  2. 2.Compensation of 6 months' salary for unlawful dismissal (Kshs 17,910 x 6 = Kshs 107,460/-)
  3. 3.Total award of Kshs 125,370/-
  4. 4.Costs awarded to the Claimant
  5. 5.Interest at court rates from date of judgment till full payment
  6. 6.Claimant to be issued a certificate of service

Authorities

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Legislation

  • Employment ActSection 37(1) and (4)
  • Employment ActSection 35(1)(c)
  • Employment ActSection 45
  • Employment ActSection 41
  • Employment ActSection 46
  • Employment ActSection 47(5)
  • Employment ActSections 35, 36, 40, 44, 51, 66, 67
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B

Cases cited (6)

  • Rashid Odhiambo Allogoh & 245 Others vs Haco Industries Limited
    [2015] eKLR
  • Nanyuki Water and Sewerage Company Limited vs. Benson Mwiti Ntiritu and 4 Others
    Civil Appeal No. 20 of 2017 (2018)
  • Milano Electronics Limited v Dickson Nyasi Muhaso
    [2021] eKLR
  • James Okeyo v Maskant Flower Limited
    [2015] eKLR
  • Godfrey Anjere v Unique Suppliers Limited
    [2015] eKLR
  • Galgalo Jarso Jillo v Agricultural Finance Corporation
    [2021] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act; Industrial Court under Section 37(4) of the Employment Act)

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, "Ngure v Steel Structures Limited (Employment and Labour Relations Cause 1089 of 2016) [2023] KEELRC 2070 (KLR)", Case Analysis (2023). Cause No 1089 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2070/eng@2023-08-09

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