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ELRCPartially AllowedNot stated in the judgment· [2024] KEELRC 391 (KLR)

Njenga v Prime Steel Mills Limited (Cause 2243 of 2016) [2024] KEELRC 391 (KLR)

Employment and Labour Relations Court
28 February 2024
JGJacob Gakeri
3,059 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled a worker wrongly classified as casual was a full employee, and his termination without reason or procedure was unfair.

What this practically means

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Executive summary

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The Claimant sued the Respondent alleging unfair termination of employment, claiming he was engaged casually on 20th February 2013 as a Box Charger and later Burryman, and that on 2nd October 2015 the Respondent terminated his employment by displaying names on a notice board without any reason or procedure. He sought a declaration of unfair termination, severance pay, pay in lieu of notice, overtime, leave pay, damages, a certificate of service, costs and interest. The Respondent maintained that the Claimant worked discontinuously from July 2014 to June 2015, quit voluntarily on 30th June 2015 to join Jokali Handling Services, and was paid all dues. The court first found that the Respondent failed to prove discontinuity or that the Claimant remained a casual employee; under Section 37(1) of the Employment Act his contract had transitioned to monthly terms. It further held that the alleged outsourcing to Jokali Handling Services was unproven and effected without the express acceptance of affected employees, applying the Wrigley Company principles, and found the Claimant was the Respondent's employee throughout. On termination, the Respondent's assertion that the Claimant quit was unsupported, and the Claimant's uncontroverted account showed no valid reason or fair procedure under Sections 41, 43 and 45. The court declared the termination unfair and awarded pay in lieu of notice of Kshs.11,200/=, compensation equivalent to 3 months' gross salary of Kshs.33,600/=, a certificate of service, costs and interest. Severance, overtime and leave claims were declined for want of particulars or entitlement.

Key legal issues

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01

Employment status and transition from casual employment

Holding

The Claimant's employment had transitioned from casual to term employment under Section 37(1) of the Employment Act, and he was the Respondent's employee throughout

Reasoning

The Respondent adduced no evidence to prove discontinuity of service despite admitting engagement from July 2014. An attendance register would have shown discontinuity but none was produced. Even on an 11-month continuous engagement, Section 37(1) deemed the contract a monthly contract. The outsourcing to Jokali Handling Services was unproven and done without employee concurrence.

p. 4
02

Whether the Claimant quit or was unfairly terminated

Holding

Neither that the Claimant quit nor that the termination was fair was proved; termination was unfair

Reasoning

The Respondent's witness could not explain how the alleged quitting occurred or produce any evidence of it. The Claimant's testimony that his name was omitted from the notice board on 2nd October 2015 was uncontroverted. There was no valid reason and no procedure under Sections 41 and 45 of the Employment Act was followed, so the Respondent failed to discharge its burden under Section 47(5).

p. 6
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Reliefs

Holding

Declaration of unfair termination, one month's pay in lieu of notice, 3 months' salary compensation, certificate of service and costs granted; severance, overtime and leave claims declined

Reasoning

Notice pay was merited as no Section 35 notice or Section 36 payment in lieu was proved. Compensation was set at 3 months' salary considering the short duration of employment, non-contribution to the termination, and absence of any wish by the Claimant to continue employment. Severance, overtime and leave claims failed for want of evidentiary basis.

p. 7

Legal principles established

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  • A casual employee who works continuously for a period equivalent to not less than one month is deemed under Section 37(1) of the Employment Act to be employed on monthly terms
  • An employer may not transfer employees to an outsourcing agency without the express acceptance of each affected employee and must settle outstanding obligations first
  • Termination must pass both substantive justification and procedural fairness

Court orders

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  1. 1.Declaration that termination of the Claimant's employment by the Respondent was unfair
  2. 2.Pay in lieu of notice Kshs.11,200/=
  3. 3.Equivalent of 3 months gross salary as compensation Kshs.33,600/=
  4. 4.Costs of this suit
  5. 5.Interest at court rates from date of judgment till payment in full
  6. 6.Certificate of service
Jurisdiction invoked
Original employment and labour relations jurisdiction of the Employment and Labour Relations Court

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, "Njenga v Prime Steel Mills Limited (Cause 2243 of 2016) [2024] KEELRC 391 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/391/eng@2024-02-28

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