Sanghani v Rotich (Appeal E015 of 2023) [2023] KEELRC 2301 (KLR)
The bottom line
#Kenya's Employment Court confirmed that casual workers with continuous service get full protection, WhatsApp is not proper termination notice, and maximum compensation awards need strong justification.
What this practically means
#Executive summary
#Key legal issues
#Employment status of the respondent
Though engaged at a daily wage, the respondent's continuous service brought him within Section 37 of the Employment Act with full statutory benefits
Sections 8, 9 and 10 require written terms; without such records and where the employee serves continuously beyond 24 hours on work not ending daily, Section 37 converts casual engagement into protected employment. The appellant's own witness admitted employment, and the daily-wage characterisation was a misapplication of the respondent's work status.
Desertion and fairness of termination
The termination was unfair; the WhatsApp notice was not proper notice and the employer failed to discharge its burden
Desertion is gross misconduct warranting summary dismissal, but the employer must issue notice and allow the employee to defend himself under Section 41(2). Where desertion is alleged, the employer must prove notice was issued and received. The WhatsApp mode cannot substitute permitted communication channels, so the trial court's finding of unfair termination was sound.
Quantum of compensation
The maximum 12 months' compensation was reduced to two months' gross wage for want of justification
Section 49 permits up to 12 months' compensation, but the maximum must be reasonable and supported by stated reasons, such as long service. The respondent served only about two years (2018 to 2020) and the magistrate gave no justification; the court on first appeal was bound to review the award and substituted two months' gross wage of Ksh.15,860.80.
Legal principles established
#- A casual employee who works continuously beyond 24 hours is deemed to be on indefinite terms and protected under Section 37 of the Employment Act
- An employee who deserts does not terminate his own employment; the employer must issue notice and give the employee a hearing under Section 41(2)
- WhatsApp may only support, not replace, permissible channels of communicating a termination notice; the employer must use a mode by which receipt can be ascertained
- The maximum award of 12 months' compensation under Section 49 must be justified with stated reasons
Court orders
#- 1.A declaration that employment was terminated unfairly
- 2.Compensation awarded at Ksh. 15,680.80
- 3.Notice pay Ksh. 7,930.40
- 4.Underpayment Ksh. 7,853.10
- 5.Annual leave Ksh. 14,679
- 6.A certificate of service to issue in terms of Section 51 of the Employment Act, 2007
- 7.Each party to bear own costs
- On appeal from
- Magistrates' Court (MC ELRC)
- MC ELRC No. 319 of 2020
- Jurisdiction invoked
- First appeal from the subordinate court in employment and labour relations matters
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sanghani v Rotich (Appeal E015 of 2023) [2023] KEELRC 2301 (KLR)", Case Analysis (2023). Not stated in judgment (appeal from MC ELRC No. 319 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2301/eng@2023-09-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.