KENYA BUILDING, CONSTRUCTION, TIMBER, FURNITURE & ALLIED INDUSTRIES EMPLOYEES’ UNION v D. MANJI CONSTRUCTION LTD. (Cause 86 of 2002) [2006] KEELRC 3 (KLR)
The bottom line
#Kenya's Industrial Court ruled a carpenter paid weekly or monthly for years was a permanent employee, awarding him terminal benefits despite his employer calling him casual.
What this practically means
#Executive summary
#Key legal issues
#Status of the grievant - casual or permanent employee
The grievant was a permanent employee, not a casual worker, notwithstanding the Company's assertion of on-and-off engagement, because his payment was on weekly or monthly basis and he worked cumulatively for 1 to 2.5 years.
The Court applied the statutory definition of a casual employee under Section 2 of the Employment Act, Cap. 226, which limits casual engagement to payment at the end of each day and engagement not exceeding twenty-four hours at a time. The admitted facts - cumulative service of one to two and a half years and weekly or monthly payment - were inconsistent with that definition, so the grievant qualified as a permanent employee entitled to terminal benefits.
Entitlement to terminal dues upon termination
The grievant was entitled to balance of one month's notice, service pay, leave travelling allowance for 1993, and two months' salary as compensation, totalling Kshs. 12,684/=, but not to outstanding annual leave, tools allowance or public holidays pay, which were stale and belated.
The Court considered the Union's demand as a whole and the Minister's recommendation. It accepted the Minister's core recommendation on notice, service pay and compensation but declined the claims for accumulated annual leave, tools and public holidays on the ground that they were stale and belated. It thus partially allowed the demand, awarding Kshs. 12,684/= instead of the Kshs. 47,921/= claimed.
Legal principles established
#- An employee whose mode of payment is weekly or monthly, and who has worked cumulatively for years, is not a casual employee within the meaning of Section 2 of the Employment Act and is entitled to terminal benefits.
Court orders
#- 1.The grievant be paid Kshs. 12,684/= made up of balance of one month's notice (Kshs. 2,158/=), service pay for 7 years (Kshs. 5,810/=), leave travelling allowance for 1993 (Kshs. 400/=) and two months' salary as compensation (Kshs. 4,316/=)
- Jurisdiction invoked
- Trade Disputes Act, Cap. 234, Section 14(7) and (9)(e) and (f) - Notification of Dispute with statutory certificates from the Labour Commissioner and the Minister for Labour
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "KENYA BUILDING, CONSTRUCTION, TIMBER, FURNITURE & ALLIED INDUSTRIES EMPLOYEES’ UNION v D. MANJI CONSTRUCTION LTD. (Cause 86 of 2002) [2006] KEELRC 3 (KLR)", Case Analysis (2006). Cause No. 86 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2006/3/eng@2006-08-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.