Otondi v Menengai Oil Refineries Limited (Cause 175 of 2018) [2024] KEELRC 296 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Nature of the employment relationship - casual or monthly contract
The claimant's casual engagement converted to a month to month contract of service after continuous work exceeding one month, per section 37 of the Employment Act
Section 2 defines a casual employee as one paid at the end of each day and engaged for not longer than twenty-four hours. Section 37(1)(a) deems a casual employee who works for a period equivalent to not less than one month to be employed on monthly wages. The claimant worked continuously from November 2015 to June 2017 with wages cumulatively paid monthly. Following Rashid Mazuri Ramadhani and Nanyuki Water & Sewerage, the court found conversion had occurred.
Whether the dismissal was wrongful, unfair and unlawful
Yes - the claimant was wrongfully, unfairly and unlawfully terminated
Under sections 45(2) and 47(5) of the Employment Act, the employee bears the burden of proving unfair termination while the employer must justify the grounds. No evidence of misconduct was adduced and no explanation was given for the respondent's payment of terminal dues at the labour office. The respondent's assertion that the claimant simply quit was unsupported. The court found the dismissal lacked valid reason and fair procedure.
Effect of the labour-office settlement agreement
The settlement does not waive the claimant's right to sue; the Kshs.14,984/= paid is treated as a set-off against the award
The court held it has a duty to interrogate the settlement's fairness. The amount of Kshs.14,984/= was neither itemized nor particularized and there was no evidence of how it was computed. Given the inequality of bargaining power and the claimant's vulnerable, necessitous position after losing his job, the court could not assume the agreement was fair or that it amounted to a waiver of the right to litigate.
Entitlement to service pay
Refused because the claimant was an NSSF member whose contributions were remitted
The respondent proved it remitted NSSF contributions for the claimant, which was undisputed. Following Maximila Bushuru v Anvi Emporium Limited, an employee who is a member of NSSF is not entitled to service pay or gratuity unless it is an agreed term of the contract of service.
Legal principles established
#- Casual employment converts to a monthly contract where the employee works for a period equivalent to not less than one month, under section 37(1)(a) of the Employment Act
- An employer must justify termination with a valid reason and fair procedure; failure renders dismissal unfair
- A labour-office settlement that is neither itemized nor shown to be fair will not bar a court claim; the amount paid is treated only as a set-off
Court orders
#- 1.A declaration that although initially engaged as a casual worker, the employment of the claimant converted to a month to month contract of service upon expiry of the first month under section 37(1)(a) of the Employment Act
- 2.A declaration that the dismissal of the claimant was wrongful, unfair, and unlawful
- 3.Award of Kshs.336,297.40 less Kshs.14,984.00 paid at the labour office, balance payable Kshs.321,313.40 (underpayments Kshs.111,606.00; notice pay Kshs.13,646.40; public holidays pay Kshs.24,280.00; overtime pay Kshs.104,889.00; compensation for wrongful dismissal Kshs.81,876.00)
- 4.The respondent shall issue and deliver to the claimant a certificate of service within 30 days of the judgment
- 5.Claimant awarded costs of the cause and interest on the amount awarded at court rates till payment in full
- 6.All other claims denied and dismissed
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance memorandum of claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Otondi v Menengai Oil Refineries Limited (Cause 175 of 2018) [2024] KEELRC 296 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/296/eng@2024-02-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.