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ELRCPartially AllowedNyeri Chief Magistrate ELRC Appeal No. E048 of 2021 (appeal against judgment in Nyeri Chief Magistrate ELRC No. E048 of 2021)· [2024] KEELRC 2076 (KLR)

Khamala v Robinson Security Ltd (Appeal E024 of 2023) [2024] KEELRC 2076 (KLR)

Employment and Labour Relations Court
6 August 2024
4,410 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Employment Court ruled an 11-year worker wasn't casual or fixed-term, awarding notice pay and unpaid leave despite fast re-employment.

What this practically means

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Executive summary

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This is a first appeal from the Chief Magistrate's Court at Nyeri (Hon. M. Okuche, SPM), which had dismissed the appellant's claim for unfair termination, holding that he was engaged under fixed term contracts that expired automatically on 31st January 2021. On appeal, Onesmus N Makau, J re-evaluated the evidence guided by the Selle v Associated Motor Boat principles on first appeals. The court found the trial magistrate erred in shifting to the appellant the burden of proving the authenticity of employment contracts and leave forms produced by the respondent, whose signatures the appellant disowned. Those documents were held not binding on the appellant. The court found as a fact that the appellant worked continuously from April 2009 to 31st January 2021 on a monthly salary of Kshs.20,000 with monthly statutory remittances, and held he was employed under a contract of service for an indefinite period terminable by notice under section 35(1)(c) of the Employment Act, not as a casual or fixed term employee. The respondent having proved neither a valid reason nor fair procedure, the termination was unfair under section 45. The court allowed the appeal, set aside the impugned judgment and substituted a declaration of unfair termination, one month's salary in lieu of notice (Kshs.20,000), accrued leave of Kshs.163,333.33 (245 days over 140 months) and a certificate of service, with costs of the appeal and the court below plus interest, subject to statutory deductions. Compensation was refused because the appellant mitigated by securing new employment the next day; claims for house allowance, rest days and gratuity/severance failed for want of proof.

Key legal issues

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01

Nature of the employment relationship

Holding

The appellant was employed under a contract of service for an indefinite period terminable by notice under section 35(1)(c) of the Employment Act, not as a casual or fixed term employee.

Reasoning

The respondent pleaded casual employment but produced unsigned, undated contracts whose signatures the appellant disowned. The respondent, as the party alleging the contracts, bore the burden of proving their authenticity under sections 107 and 109 of the Evidence Act and failed. The documents also contradicted the respondent's pleadings. The appellant proved continuous service from April 2009 to January 2021 on a monthly salary of Kshs.20,000 with monthly statutory remittances, defeating the fixed term and casual characterisation and the trial court's contrary finding.

p. 7
02

Unfair and unlawful termination

Holding

The termination of the appellant's employment was unfair within the meaning of section 45 of the Employment Act.

Reasoning

Having found the appellant was on a contract terminable by notice, the respondent was obliged to prove a valid reason for termination and adherence to fair procedure. The respondent maintained the contract simply lapsed by effluxion of time and gave no reason or process. Following section 45 and the George Musamali decision on the two stages of termination, the respondent discharged neither limb, so the termination was unfair and the trial court erred in holding otherwise.

p. 7
03

Reliefs: notice pay, accrued leave, certificate of service, compensation, house allowance, rest days, gratuity/severance

Holding

The appellant was entitled to one month's salary in lieu of notice, accrued untaken leave computed at 245 days (Kshs.163,333.33), and a certificate of service, but not compensation, house allowance, rest days pay, gratuity or severance.

Reasoning

Sections 35(1)(c) and 49(1) entitled the appellant to notice pay; section 51 entitled him to a certificate of service; section 28 entitled him to 21 days' leave per 12 months of continuous service, and the unproven leave records could not defeat the claim over 140 months. Compensation was refused because he secured comparable employment the next day (section 49(4)(f) and (g)); house allowance, rest days and gratuity/severance failed for want of proof, the wage having included housing and separation not being by redundancy.

p. 8

Legal principles established

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  • He who alleges must prove: the party alleging the existence and authenticity of a document bears the burden of proving the signature on it.
  • An employer alleging a fixed term contract must prove the contract; continuous statutory remittances and monthly salary point to a contract terminable by notice under section 35(1)(c) of the Employment Act.
  • Unfair termination requires the employer to prove both a valid reason and a fair procedure under section 45 of the Employment Act.
  • On a first appeal the court re-evaluates the evidence and draws its own conclusions while making allowance for not having seen or heard the witnesses.

Court orders

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  1. 1.Declaration that the respondent unlawfully and unfairly terminated appellant's employment.
  2. 2.Respondent to pay the appellant salary in lieu of notice of Kshs.20,000.00.
  3. 3.Respondent to pay the appellant accrued leave of Kshs.163,333.33 (total award Kshs.183,333.33).
  4. 4.Costs of the appeal and the court below with interest at court rates from the date of the judgment.
  5. 5.The award is subject to statutory deductions.
  6. 6.Certificate of service entitlement under section 51 of the Employment Act.

Authorities

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Legislation

  • Employment Act, 2007section 2 (definition of casual worker)
  • Employment Act, 2007section 28 (annual leave)
  • Employment Act, 2007section 31 (housing/house allowance)
  • Employment Act, 2007section 35(1)(c) (termination notice)
  • Employment Act, 2007section 37 (conversion of casual employment)
  • Employment Act, 2007sections 43 and 45 (validity and fairness of termination)
  • Employment Act, 2007section 49 (remedies and compensation)
  • Employment Act, 2007section 51 (certificate of service)
  • Evidence Actsections 107 and 109 (burden of proof)
  • Employment and Labour Relations Court (Procedure) RulesRule 28(3) (delivery of judgments in open court)

Cases cited (3)

  • Silas Mutwiri v Haggai Multi-Cargo Handling Services Ltd
    [2013] eKLR
  • Selle & Another v Associated Motor Boat Co. Ltd
    [1968] eKLR
  • George Musamali v G4S Security Services Kenya Ltd
    [2016] eKLR
On appeal from
Chief Magistrate's Court at Nyeri (ELRC)
Nyeri Chief Magistrate ELRC No. E048 of 2021
Jurisdiction invoked
First appeal to the Employment and Labour Relations Court from the Chief Magistrate's Court (ELRC Procedure Rules; appeal under the ELRC Act against the subordinate court's judgment)

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, "Khamala v Robinson Security Ltd (Appeal E024 of 2023) [2024] KEELRC 2076 (KLR)", Case Analysis (2024). Nyeri Chief Magistrate ELRC Appeal No. E048 of 2021 (appeal against judgment in Nyeri Chief Magistrate ELRC No. E048 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2076/eng@2024-08-06

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