Luvisia v ADC Suam Orchards Limited (Cause 3 of 2019) [2023] KEELRC 2129 (KLR)
The bottom line
#Kenya's Employment Court confirmed casual workers employed over a month are entitled to notice and fair termination protections, awarding the claimant damages plus costs.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the claimant, as a casual worker, was entitled to notice of termination of employment
Key legal issues
#Whether a casual worker employed for five months was entitled to notice of termination
Having worked five continuous months, the claimant's contract was deemed monthly under section 37(1), entitling him to one month's notice/salary in lieu
Section 37 of the Employment Act deems a casual employee's contract to be one where wages are paid monthly where the casual works for a period equivalent to not less than one month, attracting section 35(1)(c). The respondent admitted no termination notice was issued, wrongly believing casuals were not entitled to notice. The court awarded one month's salary in lieu of notice.
Whether the termination was unfair
The termination was unfair as the respondent furnished no evidence of the reason for termination and admitted dismissing the claimant on a mistaken belief that casuals were not entitled to notice
Section 45 requires the employer to prove valid reason, a fair reason and fair procedure. The respondent gave no evidence of the reason for termination and admitted dismissing the claimant because it wrongly thought he, as a casual, was not entitled to notice. Compensation of two months' salary was awarded given the claimant was an unskilled general worker of five months' service.
Legal principles established
#- A casual employee who works for a period equivalent to not less than one month has his contract deemed to be one where wages are paid monthly, attracting the 28-day notice under section 35(1)(c) of the Employment Act
- A termination is unfair where the employer fails to prove a valid and fair reason and fair procedure
- An employee must lay evidential foundation for an overtime claim beyond mere allegation
Court orders
#- 1.One month's salary in lieu of notice of Kshs. 5,000
- 2.Salary/wages for 1st January 2019 and 15th to 31st January 2019 (18 days) of Kshs. 3,000
- 3.Two months' salary as compensation for unfair termination of Kshs. 10,000/-
- 4.Total award of Kshs. 18,000/- without costs
- 5.Certificate of service to be issued
- 6.Costs of the suit to the claimant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act (employment dispute; not expressly cited)
Relief refused
#Pro rata leave
The claimant had only worked for 5 months and had not qualified for leave
Overtime
The claimant neither pleaded nor led evidence on the time he reported to work and left and the nature of work requiring overtime
Costs
Costs of the suit awarded to the claimant
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
the Court finds and holds that the termination was unfair. The claimant was a general worker with no special skills and had only worked for five months hence and award of two months salary would adequately compensate him for unfair termination
the contract of service of the casual employee shall be deemed to be one where wages are paid monthly and section 35(1)(c) shall apply to that contract of service
In conclusion the Court hereby awards the claimant as follows
It is so ordered.
Issues in the judgment
#The judgment notes the Respondent's submissions may have been filed electronically but never availed to the Court, so the court did not consider them
The claimant's pleading of a total of Kshs. 72,083.03 is not reflected in the court's final award, which does not explain the disposition of the difference beyond the specific heads addressed
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Luvisia v ADC Suam Orchards Limited (Cause 3 of 2019) [2023] KEELRC 2129 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2129/eng@2023-09-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.