C. Dorman Ltd v Mukhwana (Employment and Labour Relations Cause E220 of 2021) [2023] KEELRC 2512 (KLR)
The bottom line
#Kenya's Employment Court confirmed a 25-year employee was unfairly terminated but cut the award to Kshs 48,279 because unproven claims failed.
What this practically means
#Executive summary
#Key legal issues
#Status of the respondent's employment - casual or term/permanent
The respondent was a term (service) employee, not a casual employee
The respondent worked for the appellant from around 1991 to January 2017, a period of about 25 years. The appellant's own letter and its response of September 18, 2019 confirmed the long service and did not assert casual status; no records were adduced to establish casual employment. Section 37(1) of the Employment Act deems a casual employee engaged for a month or more to be employed on monthly terms. The court was also persuaded by the Joseph Okelo Adhiambo authority on conversion of casual employment.
Whether the termination was unfair
The termination was unfair for non-compliance with sections 43, 41 and 45 of the Employment Act
The respondent was given no reason for termination beyond a vague letter acknowledging his services; there was no notice of termination, no retirement policy evidence, no age details, and no proof of payment of dues. Under section 43(1) the employer must prove the reason for termination; under section 41(1) an employee must be heard before termination. Failure to comply rendered the termination unfair and the trial court's finding was upheld.
Whether the reliefs awarded by the trial court were justified
Leave pay for 25 years and house allowance were not justified; notice pay for one month and leave for the last year were awarded, totalling Kshs 48,279/-
The court found glaring errors in the trial magistrate's reliefs. One month's pay in lieu of notice was awarded at the pleaded figure of Kshs 24,279, which the appellant did not oppose. Leave pay for 25 years lacked evidential support and was limited to the final year. The house allowance claim was time-barred in equity, having never been raised during 25 years of service. The aggregate award replaced the trial court's reliefs, with interest and costs to the respondent.
Legal principles established
#- An employee who has worked continuously for a long period cannot be regarded as a casual employee
- An employer bears the burden of proving the reason for termination, failing which the termination is deemed unfair
- A claim for leave untaken after 25 years of service is suspect and must be proved with evidence of applications and refusals
Court orders
#- 1.Award of one-month salary in lieu of notice of Kshs 24,279/-
- 2.Leave pay for the last year of employment only, at one-month equivalent of Kshs 24,279/-
- 3.House allowance claim declined
- 4.Aggregate judgment for Kshs 48,279/- replacing the relief awarded by the trial court
- 5.Interest on the total award at court rates from the date of termination till full payment
- 6.Costs of the appeal to the respondent and costs at the lower court as already awarded therein
- 7.Certificate of service to be released to the respondent within 30 days
- On appeal from
- Magistrates' Court (trial court)
- Jurisdiction invoked
- First appeal to the Employment and Labour Relations Court; judgment does not cite the enabling provision
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "C. Dorman Ltd v Mukhwana (Employment and Labour Relations Cause E220 of 2021) [2023] KEELRC 2512 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2512/eng@2023-10-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.