Mwamchera & 33 others v Kaluworks Limited (Cause 519 of 2016 & 424 of 2018 & 100, 101 & 102 of 2023 (Consolidated)) [2024] KEELRC 799 (KLR)
The bottom line
#Kenya's Employment Court ruled that long-serving 'casual' workers automatically become permanent employees with full rights, including leave and minimum wage protections.
What this practically means
#Executive summary
#Key legal issues
#Status of the claimants: casual employees or converted employees under Section 37
The claimants converted from casual employees under Section 37 of the Employment Act, save for the 9th, 15th and 25th claimants who were not machine operators
The respondent admitted in pleadings that the claimants worked for long continuous periods (7 to 18 years) as machine operators paid weekly, not daily. Under Section 37, continuous service beyond a month converts casual employment. The piece-rate defence failed for want of a written contract as required by Section 18(1).
Employer's piece-rate defence
The piece-rate defence failed; no written contract spelling out piece-work terms was produced
Although piece-work is permitted under Section 18(1) of the Act, the employer must issue a written contract and pay for piece-work monthly or on completion. The worksheets and payment sheets did not support the claim that claimants were cushioned with minimum wage and left in control of their time.
Annual leave entitlement
Each claimant entitled to untaken leave of up to 18 months, assessed on the basic minimum wage for a machine operator in Kilifi County
Section 28 confers a right to at least 21 working days annual leave. Leave cannot accumulate beyond 18 months under Section 28(3)/Section 18(3) as cited. Claims for 7 to 18 years of untaken leave were therefore limited to 18 months' pay based on the applicable minimum wage.
Underpayment of wages
Underpayments assessed against the Regulation of Wages (General) (Amendment) Order, 2015 minimum wage for Kilifi County for 12 months; some claimants had no underpayment
Each claimant's last wage was compared to the applicable minimum wage under the 2015 Wage Order. Where the wage was below the minimum (e.g. 1st claimant at Ksh.265 against Ksh.452.30), 12 months' underpayment was computed; where above the minimum, no underpayment was due.
Unfair termination of the 9th, 25th and 26th claimants
Termination was unfair for lack of notice, substantive reasons and due process; notice pay and two months' gross salary compensation awarded
The claimants reported to work on 1 October 2016 and were told their employment had ended with immediate effect, without notice or reasons. Termination failed the mandatory fairness tests under Sections 41, 43 and 45 of the Act. The court distinguished Monica Wanza Mbavu, holding the employer has a duty to summon an employee who fails to report to work.
Distinguishing Monica Wanza Mbavu v Roofsec & Allied Works Co Ltd
The court declined to follow the reasoning in Monica Wanza Mbavu on verbal termination
In that case the employee could not prove summary dismissal where there was no communication on employment status. Here the court held that where an employee fails to report to work, the burden lies on the employer to summon the employee, and persistent absence is addressed under the Act by notice to the labour officer; the facts and authority were foundationally different.
Certificates of Service
Each claimant entitled to a Certificate of Service under Section 51 of the Act
Section 51 makes issuance of a Certificate of Service a legal requirement at the end of employment. The respondent did not show the claimants had failed to clear or resolve any matter at the shop floor.
Legal principles established
#- An employee in continuous service beyond a month who is not paid daily converts under Section 37 of the Employment Act to enjoy rights and benefits under the Act
- The employer bears the burden of proving a piece-work arrangement by a written contract under Section 18(1) of the Employment Act
- Annual leave should not be accumulated beyond the 18-month period contemplated by the Act; the employee must be proactive in taking leave
Court orders
#- 1.Judgment entered for the claimants against the respondent with awards of underpayment and/or annual leave pay to each of the 1st, 2nd, 4th, 8th, 9th, 11th, 12th, 15th, 18th, 20th, 22nd and 23rd claimants as itemised (e.g. 1st claimant: underpayment Ksh.68,365.50 and annual leave Ksh.14,925.90)
- 2.The 9th claimant awarded Ksh.26,640 compensation, notice pay Ksh.13,320, underpayment Ksh.2,920 and annual leave pay Ksh.14,925.90
- 3.The 25th claimant awarded Ksh.28,440 compensation, notice pay Ksh.14,220 and annual leave pay Ksh.15,642
- 4.The 26th claimant awarded Ksh.17,760 compensation, notice pay Ksh.8,880 and annual leave pay Ksh.9,768
- 5.Each claimant entitled to a Certificate of Service under Section 51 of the Employment Act
- 6.The claimants awarded 50% of costs
- Jurisdiction invoked
- Original employment and labour relations jurisdiction under Article 162(2) of the Constitution and the Employment and Labour Relations Court Act (claims under the Employment Act, 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Njoroge v Moi University (Cause E091 of 2022) [2024] KEELRC 2806 (KLR)[2024] KEELRC 2806 (KLR)14 Nov 2024
- Njoroge v Moi University (Cause E091 of 2022) [2024] KEELRC 2806 (KLR)[2024] KEELRC 2806 (KLR)14 Nov 2024applied
Cite this brief
#Cite this brief
Caselaw, "Mwamchera & 33 others v Kaluworks Limited (Cause 519 of 2016 & 424 of 2018 & 100, 101 & 102 of 2023 (Consolidated)) [2024] KEELRC 799 (KLR)", Case Analysis (2024). Cause No. 519 of 2016 (consolidated with Cause No. 424 of 2018 and Causes No. 100, 101 and 102 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/799/eng@2024-04-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.