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ELRCPartially AllowedELRC Appeal (Kakamega) arising from Kakamega Cause CMELR No 200 of 2019· [2024] KEELRC 1383 (KLR)

West Kenya Sugar Company Limited v Karakacha (Employment and Labour Relations Appeal E001 of 2023) [2024] KEELRC 1383 (KLR)

Employment and Labour Relations Court
13 June 2024
3,125 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that a piece-rate worker who stops showing up is deemed to have quit voluntarily, so no unfair termination occurred.

What this practically means

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Executive summary

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This is a first appeal to the Employment and Labour Relations Court at Kakamega by West Kenya Sugar Company Limited against the judgment of Hon. E. Malesi, PM, in Kakamega CMELR Cause No 200 of 2019, in which the Respondent, Shemu Buruti Karakacha, was found to have been wrongfully terminated and awarded the equivalent of six months' salary (Kshs 45,268.20) and half costs. The appeal, canvassed by written submissions, raised two principal issues: whether the trial court erred by shifting the burden of proving termination to the employer, and whether the compensation award was merited. Relying on section 47(5) of the Employment Act and the decision in Protus Wanjala Mutike v Anglo African Properties, the court held the trial magistrate erred in requiring the employer to show how it disengaged with the claimant; the employee had to first prove employment, termination and unfairness before the burden shifted. On re-evaluation, the court found the Respondent was a piece-rated worker whose pleaded termination date of 12th June 2017 was contradicted by unchallenged work and payment records showing he worked five further days thereafter. Parties being bound by their pleadings, the claim was not proved on a balance of probabilities and the burden never shifted to the employer. The court further held that where a piece-rate worker fails to turn up for work, no notice to show cause is required, the employee being deemed to have left on his own accord, consistent with Charles Kithuka & 19 others v DPL Festive Limited. The appeal was allowed, the trial judgment set aside, the claim dismissed with costs, but no orders as to costs on the appeal.

Key legal issues

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01

Burden of proof in unfair termination claims

Holding

The trial magistrate erred by placing the burden on the employer to show how it disengaged with the claimant; the employee had to first discharge the burden of proving employment, termination and that the termination was unfair.

Reasoning

Section 47(5) of the Employment Act places the burden of proving unfair termination on the employee, while the employer bears the burden of justifying the grounds for termination. The trial court reversed this allocation. The appellate court adopted section 47(5) and followed Protus Wanjala Mutike v Anglo African Properties, holding the burden never shifted because the Respondent did not prove termination.

p. 5
02

Whether unfair termination was proved

Holding

The claim was not proved on a balance of probabilities; the pleaded termination date of 12th June 2017 was rebutted by unchallenged work and payment records showing the Respondent worked on five further days.

Reasoning

The Respondent pleaded termination on 12th June 2017, but the Appellant's engagement and payment records showed he worked on 17th-21st June 2017, and that evidence was not challenged in cross-examination. Parties are bound by their pleadings, and the Respondent, a piece-rated worker, was free to come and go as work was available.

p. 6
03

Notice to show cause for piece-rate workers

Holding

A notice to show cause is only reasonably expected where the employer stops a piece-rate worker from working; absence from work is deemed voluntary departure.

Reasoning

Distinguishing piece work from a contract of service under section 2 of the Employment Act, the court held that gaps in days worked indicated the Respondent came and went as he pleased. The unchallenged engagement report demonstrated this pattern, so no procedural fairness in the form of a show-cause notice was owed when he simply did not return.

p. 7

Legal principles established

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  • In a complaint of unfair termination, the burden of proving that an unfair termination occurred rests on the employee, while the burden of justifying the grounds for termination rests on the employer (section 47(5), Employment Act).
  • 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.
  • Where a piece-rate employee fails to turn up for work, the employer has no obligation to issue a notice to show cause; the employee is deemed to have left work on his own accord.

Court orders

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  1. 1.The judgment by Hon. Eric Malesi dated 27th February 2023 and delivered on 8/3/2023 in Kakamega Cause CMELR No 200 of 2019 is set aside
  2. 2.In place of the set-aside judgment, judgment is entered dismissing the claim dated 15th October 2019 with costs in the trial court
  3. 3.No orders as to costs at the appeal

Authorities

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Legislation

  • Employment Actsection 43(1)
  • Employment Actsection 45
  • Employment Actsection 47(5)
  • Employment Actsection 2 (definitions of 'piece work' and 'contract of service')

Cases cited (8)

  • Selle & another v Associated Motor Boat Co. Ltd & others
    [1948] EA 123
  • Protus Wanjala Mutike v Anglo African Properties t/a Jmabo Mutara Lodge Laikipia
    [2021] eKLR
  • Casmir Nyakundi Nyaberi v Mwakikar Agencies Limited
    [2016] eKLR
  • Mboo Wambua & 29 others v Export Trading Company limited
    [2018] eKLR
  • Moses Mugira Rimbera v Bosky Industries Limited
    [2018] eKLR
  • Nyabiba v Apak company limited
    [2023] eKLR
  • Judith Otieno Owour v Sameer Agriculture and Livestock ltd
  • Charles Kithuka & 19 others v DPL Festive limited
    [2022] eKLR
On appeal from
Principal Magistrate's Court at Kakamega (Employment and Labour Relations)
CMELR No 200 of 2019
Jurisdiction invoked
First appeal from the trial magistrate's court to 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, "West Kenya Sugar Company Limited v Karakacha (Employment and Labour Relations Appeal E001 of 2023) [2024] KEELRC 1383 (KLR)", Case Analysis (2024). ELRC Appeal (Kakamega) arising from Kakamega Cause CMELR No 200 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1383/eng@2024-06-13

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