Mini Bakeries [Mombasa] Limited v Mose (Appeal E147 of 2023) [2024] KEELRC 2325 (KLR)
The bottom line
#A Kenyan court confirmed that long-serving 'casual' workers legally become monthly employees, but employers only pay compensation on proved salary figures.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent was a casual employee
The Respondent was not a casual employee but an employee whose wages were payable monthly, per Section 37(1) of the Employment Act; the trial court's finding was upheld
No written contract was produced; the muster roll produced covered only 2017-2020 and not the full period of employment. The Appellant itself pleaded and testified that the Respondent was still working as at December 2021 earning a monthly-equivalent wage, and had convened a disciplinary hearing with a shop steward present - inconsistent with casual engagement of 24 hours at a time. Section 37(1) deems such a contract monthly.
Whether the termination was unfair
Termination was both procedurally and substantively unfair; the trial court's finding was upheld
Section 41 mandatorily requires the employer to explain the reasons for termination in a language the employee understands, in the presence of a fellow employee or shop floor union representative, and to hear representations. Although a disciplinary hearing was allegedly held, the Appellant did not inform the Respondent of the reasons for considering termination, and no valid reason for the termination was demonstrated at trial, breaching Sections 41, 43 and 45.
Whether the trial court's awards were deserved
The leave pay award was set aside; the compensation award was substituted with kshs. 249,626 based on the proved monthly salary of kshs. 24,962.60
Leave pay is special damages requiring specific pleading and proof, which was absent. On compensation, the Appellant's evidence of the Respondent's monthly salary (kshs. 24,962.60) was unrebutted, so ten months' salary equals kshs. 249,626. The ten-month multiplier was not disturbed, being reasonable given the length of service and manner of termination.
Legal principles established
#- Where a casual employee works continuously for the equivalent of one month or more, the contract is deemed to be one where wages are paid monthly under Section 37(1) of the Employment Act
- A claim based on untaken or unpaid leave days is in the nature of special damages and must be specifically pleaded and proved
Court orders
#- 1.Setting aside the trial court's award of kshs. 55,440 being leave pay for 3 years
- 2.Setting aside the trial court's award of kshs. 285,000 for unlawful termination and substituting an award of kshs. 249,626 being compensation for unfair termination (10 months' salary at kshs. 24,962.60)
- 3.Judgment entered for the Respondent against the Appellant for kshs. 249,626, subject to statutory deductions pursuant to Section 49(2) of the Employment Act
- 4.Interest on the awarded sum at court rates from the date of the trial court's judgment
- 5.Each party to bear its own costs of the appeal, but the Respondent awarded costs of proceedings in the Court below
- On appeal from
- Mombasa Chief Magistrate's Court
- Employment Case No. E265 of 2022
- Jurisdiction invoked
- First appellate jurisdiction over the trial court's judgment (appeal from the Chief Magistrate's Employment Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mini Bakeries [Mombasa] Limited v Mose (Appeal E147 of 2023) [2024] KEELRC 2325 (KLR)", Case Analysis (2024). Employment Appeal from Mombasa Chief Magistrate's Court Employment Case No. E265 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2325/eng@2024-09-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.