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ELRCPartially AllowedNot stated in judgment· [2023] KEELRC 2895 (KLR)

Barasa v Mini Bakers Limited (Cause 1444 of 2016) [2023] KEELRC 2895 (KLR)

Employment and Labour Relations Court
14 November 2023
2,138 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A worker engaged for over two decades cannot be treated as a casual; Kenyan courts will award service pay, notice and compensation despite incomplete employment records.

What this practically means

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Executive summary

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The Claimant sued the Respondent for wrongful and unfair termination of employment and unpaid terminal dues, alleging he was employed in 1992 as a Dough Maker on a monthly salary of Kshs. 20,352/- and terminated on 7th March 2016 without notice or a hearing. He sought notice pay, service pay for 25 years, leave pay for 23 years, house allowance, 12 months' compensation and a certificate of service, totalling Kshs. 1,762,543/-. The Respondent admitted employment but asserted he was a casual worker governed by a CBA, that notice, leave and house allowances were rolled into his daily wages, that he declined conversion to permanent terms, and that he absconded rather than being dismissed. The Claimant testified and relied on section 37(1) of the Employment Act on conversion of casual employment, citing Humphrey Owino Omondi v Vishnu Builders Limited. The Respondent's witness admitted no pre-2014 CBAs or payment vouchers were produced. The Respondent filed no submissions. The court found the Claimant had been engaged from 1992 and held he was entitled to service pay at 15 days per completed year for 23 years, one month's notice pay, and three months' salary as compensation for unfair termination, but refused the house allowance claim, holding wages were inclusive of house allowance and no underpayment was proved. Judgment of Kshs. 315,456/- in aggregate was entered with costs and interest at court rates from the date of judgment until payment in full.

Key legal issues

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01

Status of employment (casual vs permanent)

Holding

The Claimant was a dough maker engaged from 1992; the lengthy service could not be treated as casual throughout

Reasoning

The court noted the Respondent filed no submissions and the evidence established continuous engagement in breadmaking from 1992 until termination in 2016. RW1 admitted no CBA or payment vouchers prior to 2014 were produced. The court applied section 37(1) of the Employment Act as submitted by the Claimant, treating long service as converting to monthly-paid terms.

p. 4
02

Entitlement to service pay

Holding

Service pay awarded at 15 days per year for 23 completed years

Reasoning

The court found that the Claimant did not belong to a pension scheme and, despite the Respondent's assertion, treated him as entitled to service pay upon termination after lengthy service, applying the statutory rate of 15 days per completed year of service over 23 years.

p. 4
03

Compensation for unfair termination

Holding

Three months' salary awarded instead of the 12 months claimed

Reasoning

Although the court found the Claimant entitled to notice and compensation, it exercised discretion to award only three months' salary rather than the twelve months claimed, plus one month's notice pay.

p. 4
04

House allowance

Holding

Claim refused as wages were inclusive of house allowance

Reasoning

The court held that the rate paid to the Claimant already included a house allowance component, and the Claimant produced no records demonstrating underpayment over the 23-year period claimed.

p. 4

Legal principles established

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  • A casual employee engaged continuously becomes a monthly-paid employee, and is entitled to service pay at 15 days per completed year of service where no NSSF contributions were made

Court orders

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  1. 1.Judgment for the Claimant against the Respondent for Kshs. 234,048/- as service pay
  2. 2.One month's salary as notice compensation – Kshs. 20,352/-
  3. 3.3 months' salary as compensation for unfair termination – Kshs. 61,056/-
  4. 4.Costs of the suit to the Claimant
  5. 5.Interest at court rates on the decretal sums from the date of judgment till payment in full

Authorities

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Legislation

  • Employment Actsection 37(1)
  • Employment Actsection 35(1)(c)
  • Employment Actsection 40
  • Retirement Benefits Actsgeneral

Cases cited (1)

  • Humphrey Owino Omondi v Vishnu Builders Limited
    [2016] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance employment claim)

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, "Barasa v Mini Bakers Limited (Cause 1444 of 2016) [2023] KEELRC 2895 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2895/eng@2023-11-14

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