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ELRCPartially AllowedNot stated in the judgment text· [2024] KEELRC 2315 (KLR)

Brurudika Holdings Limited & another v Onyango (Appeal E110 of 2023) [2024] KEELRC 2315 (KLR)

Employment and Labour Relations Court
26 September 2024
MMM. Mbarũ
2,666 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed that long-serving 'casual' workers gain full protection, but slashed excessive compensation and threw out the malicious prosecution award.

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 Mombasa against the judgment of 19 September 2023 in Mombasa CMELRC Cause No. 515 of 2019, in which the learned magistrate declared the respondent's employment unfairly terminated, awarded 12 months' compensation of Ksh.234,800, Ksh.600,000 for malicious prosecution, Ksh.23,060 for 22 days worked, costs and interest. The respondent had been employed as a sales representative cum driver from November 2017 and was arrested and charged in Mombasa Criminal Case No. 289 of 2018 with stealing by a servant, after which his employment ended without notice or hearing. The court, as a first appellate court, re-evaluated the evidence following Peter's v Sunday Post. It held that the respondent, employed continuously beyond 24 hours on work not ending within a day, was a protected employee under Section 37 of the Employment Act entitled to notice, hearing and reasons. It agreed that Section 45(3) of the Employment Act had been declared unconstitutional in Samuel G. Momanyi and Mercy Njoki Karingithi, so the appellants could not rely on it. Failure to follow due process amounted to unfair termination. However, the 12 months' compensation was excessive for three months' service and was reduced to three months' gross wage. The malicious prosecution award was set aside because the arrest and prosecution were undertaken by the police and the DPP, the appellants having only made a report. The 22 days' pay award was upheld, as were trial costs, with each party bearing its own costs of the appeal. The appeal was partially successful.

Key legal issues

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01

Status of the employee

Holding

Respondent was a protected employee, not casual

Reasoning

Employment ran from November 2017 to February 2018 on continuous work not expected to end within a day, attracting Section 37 protections and rights to notice, hearing and reasons under Sections 35, 41, 43 and 45 of the Employment Act. Authorities confirm an employer cannot retain casual status through peak/off-peak cycles.

p. 4
02

Reliance on Section 45(3) of the Employment Act

Holding

Unavailable; provision declared unconstitutional

Reasoning

Following Samuel G. Momanyi and Mercy Njoki Karingithi, a provision declared unconstitutional remains invalid until overturned by a superior court. Section 45(3) cannot negate the requirement of valid and justified reasons before termination, so the appellants' failure to follow due process resulted in unfair termination.

p. 4
03

Quantum of compensation

Holding

12 months' award excessive; reduced to 3 months

Reasoning

A court must give reasons for the maximum award. Given the respondent worked less than 3 months, 3 months' gross wage of Ksh.29,350 (Ksh.88,080/88,050) was appropriate, following Chai Trading.

p. 5
04

Malicious prosecution

Holding

Claim failed; appellants only reported to police

Reasoning

Arrest and prosecution are functions of police and the DPP. The respondent did not dispute that the appellants did not arrest or prosecute him; a mere report to police on reasonable suspicion cannot found malicious prosecution.

p. 5
05

Pay for 22 days in February 2018

Holding

Award upheld

Reasoning

No evidence the appellants paid the respondent for work done after arrest; the assessed sum was for days worked, not the gross monthly wage.

p. 5

Legal principles established

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  • An employee engaged beyond a day on continuous work ceases to be casual and is protected under Section 37 of the Employment Act
  • Section 45(3) of the Employment Act has been declared unconstitutional and cannot be relied on to defeat unfair termination claims
  • Maximum compensation must be justified with reasons; award reduced to 3 months given 3 months' service

Court orders

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  1. 1.Declaration of unfair termination of employment upheld
  2. 2.Compensation reduced to Ksh.88,050 (3 months' gross wage)
  3. 3.Pay for 22 days of Ksh.23,060 upheld
  4. 4.Award of Ksh.600,000 damages for malicious prosecution set aside
  5. 5.Costs of the trial court proceedings awarded to the respondent
  6. 6.Each party to bear its own costs of the appeal

Authorities

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Legislation

  • Employment ActSection 45(3)
  • Employment ActSection 10(7)
  • Employment ActSection 37
  • Employment ActSections 35, 41, 43 and 45
  • Constitution of KenyaArticles 28, 41(1), 47, 48 and 50(1)

Cases cited (10)

  • Mbowa v East Mengo District Administration
    [1972] EA
  • Nzoia Sugar Company Limited v Fungututi
    [1988] eKLR
  • Samuel G. Momanyi v Attorney General & another
    [2012] eKLR
  • Mercy Njoki Karingithi v Emerald Hotels Resorts and Lodges Ltd
    (2014) eKLR
  • Peter's v Sunday Post Limited
    [1958] EA 424
  • Krystalline Salt Limited v Kwekwe Mwakele & 67 others
    [2017] eKLR
  • Kenyatta University v Maina
    [2022] KECA 1201 (KLR)
  • Titus Muriuki Ndirangu v Beverly School of Kenya Limited
    [2022] eKLR
  • Hatari Security Gurads Ltd v Odongo
    (Appeal E012 of 2022) [2023] KEELRC
  • Chai Trading Co. Ltd v Joseph Kimathi Ikiamba
    [2018] eKLR
On appeal from
Magistrates' Court (ELRC), Mombasa
Mombasa CMELRC Cause No. 515 of 2019
Jurisdiction invoked
First appellate jurisdiction over appeals from the subordinate court (ELRC cause), re-evaluating evidence on law and fact

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, "Brurudika Holdings Limited & another v Onyango (Appeal E110 of 2023) [2024] KEELRC 2315 (KLR)", Case Analysis (2024). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2315/eng@2024-09-26

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