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ELRCPartially AllowedNot stated in the excerpt (Memorandum of Claim dated 30th March 2016)· [2023] KEELRC 2500 (KLR)

Omolo v Kenya School of Monetary Studies (Cause 1261 of 2016) [2023] KEELRC 2500 (KLR)

Employment and Labour Relations Court of Kenya
3 October 2023
NMNzioki wa Makau
2,819 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A long-serving 'casual' worker in Kenya won unfair termination pay because years of continuous work and a staff card made him a term employee.

What this practically means

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Executive summary

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The Claimant sued the Respondent institution for damages and terminal dues following termination of his employment in January 2016, claiming he had been engaged from 2011 on an implied contract that had converted from casual to term employment, and that he was dismissed without notice to create room for relatives and friends of management. The Respondent denied the claim, asserting the Claimant was a casual labourer engaged day-to-day depending on availability of work, that his employment determined at the end of each day, that the staff card and payslips he produced did not originate from it, and that he had neither exhausted administrative remedies nor issued a demand notice. The Claimant relied on sections 35, 36, 37, 41, 42 and 45 of the Employment Act and constitutional provisions on fair labour practices, remuneration, dignity and non-discrimination, while the Respondent relied on authority that the burden lay on the Claimant first to prove conversion of casual employment, and that his discrimination claim was unproved. The court found that the aggregate period of engagement converted the contract to a term contract under section 37, that the staff card distinguished him from visitors, and that he deserved natural justice under section 41 before termination. However, the discrimination and aggravated damages claims failed for want of proof. The court awarded one month's notice pay of Kshs. 17,475.20, three months' compensation of Kshs. 54,425.60, costs, interest from the date of judgment, and a certificate of service under section 51. Claims for January 2016 salary and maximum compensation were not granted. Judgment delivered at Nairobi on 3rd October 2023 by Nzioki wa Makau, J.

Key legal issues

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01

Conversion of casual employment to a term contract under section 37 of the Employment Act

Holding

The court found the aggregate period of engagement converted the contract from casual to a term contract, aided by the issue of a staff card

Reasoning

The court accepted that the Claimant was engaged on an aggregate period that converted his contract from casual to a term contract under section 37. The staff card distinguished him from mere visitors holding day passes, and his cumulative engagement entitled him to natural justice before termination.

p. 5
02

Unfair termination for want of procedural fairness

Holding

Termination by instructing the Claimant not to report to work, without explanation or hearing, was unlawful

Reasoning

Having been converted to a term employee, the Claimant was dismissed in January 2016 by being told not to report to work. He was entitled to an explanation and a hearing under section 41, and the absence of this rendered the termination unlawful, attracting notice pay and compensation.

p. 5
03

Discrimination and aggravated damages

Holding

The claim of discrimination and aggravated damages failed for want of proof

Reasoning

The Respondent produced a memo showing all casual employees were paid equally per day for days worked. Following Ol Pejeta Ranching Limited v David Wanjau Muhoro, a discrimination claim requires proof of differential treatment on grounds listed under Article 27(4), which the Claimant did not substantiate; he who alleges must prove.

p. 5

Legal principles established

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  • An employee whose casual engagement is converted to a term contract is entitled to procedural fairness under section 41 of the Employment Act before termination

Court orders

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  1. 1.One month's notice pay of Kshs. 17,475.20
  2. 2.Three months' salary as compensation for unlawful termination of Kshs. 54,425.60
  3. 3.Costs of the suit to the Claimant
  4. 4.Interest on the sums in (a) and (b) at court rates from the date of judgment till payment in full
  5. 5.Certificate of service in terms of section 51 of the Employment Act

Authorities

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Legislation

  • Employment Actsection 35(1)(c)
  • Employment Actsection 36
  • Employment Actsection 37
  • Employment Actsection 41
  • Employment Actsection 42(1)
  • Employment Actsection 45
  • Employment Actsection 51
  • Constitution of KenyaArticle 27
  • Constitution of KenyaArticle 27(4)
  • Constitution of KenyaArticle 28
  • Constitution of KenyaArticle 41(2)(a)
  • Constitution of KenyaArticle 232(1)(a)

Cases cited (8)

  • British Leyland UK Ltd v Swift
    (1981) IRLR 91
  • Janet Nyandiko v Kenya Commercial Bank Limited
    [2017] eKLR
  • Humphrey Omondi v Vishnu Builders Ltd
    [2013] eKLR
  • Kesi Mohamed Salim v Kwale International Sugar Co. Ltd
    [2017] eKLR
  • William Musembi v Moi Education Centre
    [2014] eKLR
  • Idd Salim Mwadele & 19 others v Kwale International Sugar Company Limited
    [2017] eKLR
  • Josphat Njuguna v High Rise Self Group
    [2014] eKLR
  • Ol Pejeta Ranching Limited v David Wanjau Muhoro
    [2017] eKLR
Jurisdiction invoked
Original jurisdiction of the Employment and Labour Relations Court over employment and labour relations claims (Employment Act; claim for unfair termination and terminal dues)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Omolo v Kenya School of Monetary Studies (Cause 1261 of 2016) [2023] KEELRC 2500 (KLR)", Case Analysis (2023). Not stated in the excerpt (Memorandum of Claim dated 30th March 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2500/eng@2023-10-03

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