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ELRCPartially AllowedEmployment Appeal from Mombasa Chief Magistrate's Court Employment Case No. E265 of 2022· [2024] KEELRC 2325 (KLR)

Mini Bakeries [Mombasa] Limited v Mose (Appeal E147 of 2023) [2024] KEELRC 2325 (KLR)

Employment and Labour Relations Court
24 September 2024
3,045 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a first appeal to the Employment and Labour Relations Court at Mombasa, before Agnes Kitiku Nzei J, against the judgment of the Mombasa Chief Magistrate's Court in Employment Case No. E265 of 2022 delivered on 27/11/2023. The Respondent claimed he was employed as a bakery machine operator from 2010 and unlawfully terminated on 18/12/2021 after reporting corruption by a supervisor; the Appellant contended he was a casual who simply stopped reporting to work. The trial court found the Respondent was not a casual employee by virtue of Section 37 of the Employment Act, that his termination was unfair under Sections 41 and 43, and awarded leave pay of kshs. 55,440 and compensation of kshs. 285,000. On appeal, the court re-evaluated the evidence as it is entitled to do on a first appeal. It upheld the finding that the Respondent was a monthly-paid employee rather than a casual, noting the absence of a written contract, the incomplete muster roll, and the fact that a disciplinary hearing with a shop steward was inconsistent with casual engagement. It also upheld the finding of unfair termination for breach of the mandatory procedure in Section 41 and absence of a valid reason under Section 45(2)(a). However, it set aside the leave pay award as a special damages claim not specifically pleaded, and varied the compensation award to kshs. 249,626 (ten months' salary based on the unrebutted monthly wage of kshs. 24,962.60), subject to statutory deductions, with interest from the trial judgment date. Each party bears its own costs of the appeal; the Respondent retains costs below.

Key legal issues

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01

Whether the Respondent was a casual employee

Holding

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

Reasoning

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.

p. 5
02

Whether the termination was unfair

Holding

Termination was both procedurally and substantively unfair; the trial court's finding was upheld

Reasoning

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.

p. 6
03

Whether the trial court's awards were deserved

Holding

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

Reasoning

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

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  • 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

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  1. 1.Setting aside the trial court's award of kshs. 55,440 being leave pay for 3 years
  2. 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. 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. 4.Interest on the awarded sum at court rates from the date of the trial court's judgment
  5. 5.Each party to bear its own costs of the appeal, but the Respondent awarded costs of proceedings in the Court below

Authorities

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Legislation

  • Employment ActSection 2 (definition of casual employee)
  • Employment ActSection 35(1)(c)
  • Employment ActSection 37(1)
  • Employment ActSections 41, 42(1), 43, 44(3) and (4), 45, 45(2)(a), 49(2)

Cases cited (5)

  • Selle & Another -vs- Associated Motor Boat & Co. Ltd & Another
    [1968] E.A 123
  • Peters -vs- Sunday Post Ltd
    [1958] E.A. 424
  • Mursal -vs- Manesa
    [2022] eKLR
  • Abok James Odera T/a A.J. Odera & Associates -vs- John Patrick Machira T/a Machira & Company Advocates
    [2013] eKLR
  • Janet Nyandiko -vs- Kenya Commercial Bank Limited
    [2017] eKLR
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

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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, "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.