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ELRCDismissedAppeal from Kakamega CMELR E036 of 2020· [2024] KEELRC 705 (KLR)

Asakhulu v West Kenya Sugar Company Limited (Employment and Labour Relations Appeal 1 of 2023) [2024] KEELRC 705 (KLR)

Employment and Labour Relations Court of Kenya (High Court sitting at Kakamega)
14 March 2024
JKJ.W. Keli
4,749 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Appellant appealed against the judgment of Hon. J.R. Ndururi (P.M.) delivered on 26th January 2023 in Kakamega CMELR E036 of 2020, dismissing his claim for unfair termination of employment by West Kenya Sugar Company Limited. He sought setting aside of the judgment, a finding that his employment as a cane loader was on a term contract and was unlawfully terminated, and award of the reliefs claimed, including notice pay, underpayment, leave, public holidays, overtime, rest days, house allowance and 12 months' compensation. The appeal was canvassed by written submissions. J.W. Keli J, guided by Selle v Associated Motor Boat Co., re-evaluated the evidence. On the first issue, the court found the NSSF statement was not proof of monthly salary or continuous employment, the claimant failed to produce MPESA statements proving the alleged Kshs 8,000 monthly pay, and the respondent's records of days worked and tonnage loaded, together with the welfare group agreement, proved piece rate engagement. On the second issue, the claimant gave vague and inconsistent accounts of the termination date and failed to lay the basis for unfair termination as required by section 47(5) of the Employment Act. On reliefs, the court held section 35 notice does not apply to piece rate work, distinguishing Owour v Rea Vipingo, and that underpayment, leave, rest days, public holidays and overtime claims were special damages requiring specific proof. The appeal was dismissed with each party bearing their own costs.

Key legal issues

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01

Nature of the employment relationship - piece rate or term contract

Holding

The Appellant was a piece rate worker; the trial court's finding was upheld

Reasoning

The claimant's NSSF statement showed gaps and an employment date inconsistent with his pleaded account, and was explained by the welfare group agreement. He failed to produce MPESA statements proving monthly payment of Kshs 8,000, while the respondent produced records of days worked and tonnage loaded showing payment per tonnage. The respondent discharged its burden of proving piece rate engagement paid up to 10th April 2020.

p. 7
02

Whether the Appellant was unfairly dismissed

Holding

No unfair termination established; the appeal on this ground was rejected

Reasoning

Section 47(5) of the Employment Act places the burden of proving unfair termination on the employee. The claimant gave inconsistent dates of employment and only vaguely stated he was dismissed 'on or about May 2020' without evidence. He testified he only failed to report when sick, making it more likely he stayed away for his own reasons.

p. 8
03

Entitlement to reliefs including notice pay for a piece rate worker

Holding

No reliefs were merited; the court declined to follow the authority relied on for notice entitlement

Reasoning

Although the appellant relied on Owour v Rea Vipingo Plantations Ltd for a piece rate worker's notice entitlement under sections 18(1)(b) and 35(1)(c), the court read section 35 as excluding contracts to perform specific work from notice requirements. Further, no proof of monthly payment of Kshs 8,000 existed, so notice would not apply even if that authority were followed.

p. 9

Legal principles established

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  • A first appellate court must re-evaluate the evidence and draw its own conclusions while making allowance for not having seen or heard the witnesses
  • Section 35 termination notice does not apply to a contract to perform specific work (piece rate work)
  • The burden of proving unfair termination rests on the employee, who must lay the basis of the termination including the actual date
  • Claims for underpayment, rest days, public holidays, leave and overtime are in the nature of special damages and must be specifically proved

Court orders

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  1. 1.The entire judgment of Hon. J.R. Ndururi (P.M) delivered on 26th January 2023 in Kakamega CMELR E036 of 2020 is upheld.
  2. 2.The appeal is dismissed.
  3. 3.Each party to bear their own costs in the appeal.

Authorities

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Legislation

  • Employment Actsection 10(6) and (7)
  • Employment Actsection 74
  • Employment Actsection 47(5)
  • Employment Actsection 2 (definition of piece work)
  • Employment Actsection 18(1)(b)
  • Employment Actsection 35(1)(c)
  • Evidence Actsection 107(1) and (2)
  • Evidence Actsection 108
  • Regulation of Wages (General) (Amendment) Orderwages of cane loaders

Cases cited (9)

  • Selle & Another v Associated Motor Boat Co. Ltd & Others
    (1948) EA 123
  • Edwin Kabogo Munene v Equity Bank Limited
    Industrial Cause 1132 of 2012
  • Silas Mutwiri v Haggai Cargo Handling Services Limited
    (2013) eKLR
  • Owour v Rea Vipingo Plantations Ltd
    (2022) eKLR
  • Protus Wanjala Murike v Anglo African Properties t/a Jambo Mutara Lodge Laikipia
    (2021) eKLR
  • Casmir Nyakundi Nyaberi v Mwakikar Agencies Limited
    (2016) eKLR
  • Krystalline Salt Ltd v Kwekwe Mwakele
    (2017) eKLR
  • Charles Kithuka & 19th Others v DPL Festive Limited
    (2020) eKLR
  • Twiga Construction Limited v Julius Nyamai Mulatia
    [2018] eKLR
On appeal from
Principal Magistrate's Court, Kakamega (CMELR)
CMELR E036 of 2020
Jurisdiction invoked
First appellate jurisdiction over the trial court's judgment in Kakamega CMELR E036 of 2020

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (8)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Asakhulu v West Kenya Sugar Company Limited (Employment and Labour Relations Appeal 1 of 2023) [2024] KEELRC 705 (KLR)", Case Analysis (2024). Appeal from Kakamega CMELR E036 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/705/eng@2024-03-14

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