Haroon v Kashali (Appeal E006 of 2023) [2023] KEELRC 3451 (KLR)
The bottom line
#A Kenyan court cut a worker's award from Kshs. 466,670 to Kshs. 16,000 because he walked off the job after being refused a salary advance.
What this practically means
#Executive summary
#Key legal issues
#Nature of employment - casual or protected term employment
Employment from January 2018 to 18 June 2020 ceased being casual and converted to term employment protected under Section 37 of the Employment Act; absent a written contract the respondent was a general worker covered under the Minimum Wage Orders
Section 8 permits oral employment, but continuous employment beyond casual limits converts to protected term employment under Section 37. Failure to issue a written contract left the employer exposed. Without a written contract assigning the shop assistant role, the respondent was classified as a general worker whose wage was regulated by the Minimum Wage Orders.
Whether termination was unfair
No unfair termination - the respondent deserted employment after being refused a salary advance; remedies for unfair termination and notice removed
The evidence, including the respondent's own report to the labour office, showed he requested a salary advance on 18 June 2020, was refused, and left employment demanding payment for days worked, leave, holidays and notice. Desertion for no good cause, after receiving a Kshs. 14,000 advance against a Kshs. 15,000 monthly wage, extinguished entitlement to compensation or notice pay.
Underpayments and service pay
Underpayments award in error since wages paid exceeded the general worker minimum wage; service pay not due as NSSF and NHIF dues were paid
The wage paid (Kshs. 15,000) exceeded the minimum wage for a general worker in Mombasa across the relevant periods (May 2015 to June 2020), so even without housing allowance the respondent was well compensated. Both parties confirmed statutory NSSF and NHIF dues were paid, hence no service pay was payable.
Annual leave pay
Respondent entitled to annual leave pay of Kshs. 16,000 for 18 months based on last wage, as appellant filed no work records showing leave taken
The appellant filed no work records even where the respondent was said to be a casual employee, and no record showed the respondent took annual leave or was compensated for it. The labour officer's finding that the appellant closed for several weeks each year was not submitted before the trial court.
Legal principles established
#- Oral employment that is continuous and not of a casual nature converts to term employment protected under Section 37 of the Employment Act
- An employee who deserts employment cannot claim remedies for unfair termination or notice pay
- Costs in employment and labour relations claims are discretionary and should issue rarely
Court orders
#- 1.Appeal allowed in its merit
- 2.Judgment in Mombasa CMELRC Cause No. 210 of 2020 set aside
- 3.Respondent awarded annual leave pay of Kshs. 16,000 only
- 4.Each party to bear own costs
- On appeal from
- Principal Magistrate's Court, Mombasa (CMELRC)
- Mombasa CMELRC No. 210 of 2020
- Jurisdiction invoked
- First appellate jurisdiction over the Principal Magistrate's Court (ELRC Act, appeals from subordinate courts in employment matters)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Haroon v Kashali (Appeal E006 of 2023) [2023] KEELRC 3451 (KLR)", Case Analysis (2023). Mombasa CMELRC No. 210 of 2020 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3451/eng@2023-11-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.