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ELRCPartially AllowedNot stated in the judgment as provided· [2024] KEELRC 1364 (KLR)

Nyonga v China City Company Limited (Appeal E001 of 2024) [2024] KEELRC 1364 (KLR)

Employment and Labour Relations Court
6 June 2024
MMM. MBARŨ
1,942 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that a casual worker who works beyond one day becomes a permanent employee, and an employer who dismisses them for 'absconding' without notice and a hearing must pay compensation.

What this practically means

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Executive summary

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This is a first appeal against the judgment of the magistrates' court in ELRC No 6 of 2020 delivered on 10 January 2024, which dismissed the appellant's claim of unfair termination with costs on the ground that he had failed to prove his case. The appellant had been engaged from 2018 and, on his account, was sent away without notice or hearing on 2 September 2019; he claimed 12 months' compensation, notice pay, service pay, public holiday pay and underpayments. The respondent asserted he was a casual labourer who resigned or absconded, was paid per the Minimum Wage Orders, and was a member of the NSSF. Both parties filed written submissions, the appellant relying on authorities on desertion, the respondent on the employee's burden under Section 47(5). The court, re-evaluating the entire record as a first appeal, affirmed the trial court's finding that casual employment converted to term employment under Section 37, but held the trial court erred in not applying the full statutory regime to the alleged absconding: desertion is gross misconduct requiring notice and representations under Section 41(2), and absence per se is not a dismissal ground, so the termination was unfair. Notice pay and two months' compensation were assessed. Claims for service pay, underpayments and public holiday pay failed for lack of proof or because wages exceeded the applicable minimum. The judgment was reviewed and the appeal allowed with compensation of Kshs 30,280, notice pay of Kshs 14,650 and 50% costs of the appeal; each party to bear its own costs in the lower court.

Key legal issues

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01

Conversion of casual employment to term contract

Holding

Employment converted to term employment under Section 37, entitling the appellant to rights and benefits under the Act

Reasoning

The worksheets showed continuous work beyond single days on matters not likely to end within a day. Under Section 2 casual employment ends each day; continuity beyond the day triggers conversion under Section 37. The trial court itself found such conversion, securing the appellant's statutory rights.

p. 3
02

Fairness of termination following alleged desertion

Holding

Termination was unfair; alleged absconding is gross misconduct requiring notice and an opportunity to make representations under Section 41(2), and the employer must prove grounds under Section 43

Reasoning

The respondent made only a general assertion of desertion without evidence of any measures taken or opportunity given to the appellant to explain his absence. Absence per se is not a dismissal ground unless without leave or lawful cause. The failure to justify grounds rendered the termination unfair, warranting notice pay and compensation.

p. 3
03

Notice pay

Holding

Notice pay assessed at the wage evidenced by the payrolls

Reasoning

The respondent's payrolls indicated a gross wage of Kshs 15,140 inclusive of house allowance, which the court found more accurate than the appellant's claimed Kshs 14,560; notice pay was accordingly assessed on the payroll wage.

p. 4
04

Compensation for unfair termination

Holding

Compensation of two months' gross wage (Kshs 30,280) appropriate given under two years of service

Reasoning

The appellant worked from 15 January 2018 to 2 September 2019, a period of under two years. In the circumstances, two months' gross wage was found appropriate as compensation for the unfair termination.

p. 4

Legal principles established

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  • Absence from work per se does not constitute a ground for dismissal unless it is without leave or other lawful cause, and an employer alleging desertion must prove the grounds under Section 43 and afford the employee a hearing under Section 41(2)
  • Casual employment that continues beyond a day on work not likely to end within a day converts to term employment under Section 37 of the Employment Act, carrying full rights and benefits

Court orders

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  1. 1.The judgment in Kaloleni CMELRC No 6 of 2020 is reviewed and the appeal is allowed
  2. 2.Compensation of Kshs 30,280
  3. 3.Notice pay of Kshs 14,650
  4. 4.50% costs of the appeal to the appellant
  5. 5.For the lower court, each party to bear its own costs

Authorities

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Legislation

  • Employment ActSection 2
  • Employment Act, 2007Section 17
  • Employment Act, 2007Section 18
  • Employment Act, 2007Section 19
  • Employment Act, 2007Section 35
  • Employment Act, 2007Section 37(1)
  • Employment Act, 2007Section 41(2)
  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 45
  • Employment Act, 2007Section 47(5)
  • Evidence ActNot specified
  • Regulation of Wages and Conditions of Employment (General) OrderDefinition of machine operator
  • Minimum Wage OrdersNot specified

Cases cited (5)

  • National Bank of Kenya v Samuel Nguru Mutonya
    [2019] eKLR
  • Stella Auma Oduor v Solvit Security Solutions
    Cause No 882 of 2017
  • Galgalo Jarso Jillo v Agricultural Finance Corporation
    [2021] eKLR
  • Boringa v Mega Pack (K) Limited
    Cause No 101 of 2017 (Nakuru)
  • Too v University of Eastern Africa, Baraton
    (Cause E023 of 2021) [2024] KEELRC
On appeal from
Mariakani Magistrates Court (Kaloleni CMELRC No 6 of 2020)
ELRC No 6 of 2020
Jurisdiction invoked
First appeal from the magistrates' court in an employment cause

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, "Nyonga v China City Company Limited (Appeal E001 of 2024) [2024] KEELRC 1364 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1364/eng@2024-06-06

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