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ELRCPartially AllowedNot stated in the judgment as provided

Gervasio Muriira & 8 others v Mutethia Farmers Co-Operative Society Limited [2014] KEELRC 1492 (KLR)

Employment and Labour Relations Court
19 December 2014
1,607 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled monthly-paid workers are not casual employees, awarded them 15 months' unpaid salaries, house allowance and leave pay, and ordered their reengagement.

What this practically means

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Executive summary

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Eight claimants (the 8th having withdrawn) sued their employer, a cooperative society, claiming unpaid salaries for 15 months from November 2012 to January 2014, house allowance throughout service, and pay in lieu of annual leave not granted for three years. They sought nullification of letters dated 9.01.2014 sending them on unpaid leave, reinstatement, interest and costs. The respondent admitted owing some salaries but disputed the period, and pleaded that the claimants were liable to surcharge for salary advances, gross negligence and misappropriation. The court framed four issues. First, it held that none of the claimants was a casual employee, since they were paid monthly, could receive advances, and unpaid leave was inconsistent with casual engagement. Second, it found no liability for surcharge: salary advances were inconceivable where salaries were unpaid; no disciplinary proceedings were held; and the minutes relied on postdated the suit and departures, being an afterthought without due process. Third, accepting the claimants' account on a balance of probability, it awarded 15 months' unpaid salary each, rejecting the respondent's muster roll as a fabricated record riddled with discrepancies, the primary check-in and out register not having been filed. Fourth, it awarded the 15% house allowance under the wage orders and pay in lieu of leave. Although the claimants were entitled to reinstatement, the court substituted reengagement, effective 1.01.2015, as more proportionate to the respondent's crop-based, price-fluctuating operations. Judgment was entered for the claimants with a declaration that the unpaid-leave letters were null, monetary awards, interest in default of payment by 1.02.2015, and costs fixed at Kshs.35,000 per claimant. The judgment contains an arithmetical discrepancy between the itemised sub-total and the sum in the final orders.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the 2nd, 4th, 5th, 6th, 7th and 9th claimants were casual employees
  2. 2.Whether the claimants were liable for surcharge on account of salary advances, gross negligence or misappropriation that occasioned the respondent losses
  3. 3.Whether the claimants are entitled to salaries as prayed for
  4. 4.Whether the claimants are entitled to house allowance

Key legal issues

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01

Casual employment status

Holding

None of the claimants was a casual worker

Reasoning

The court examined the definition of a casual employee under section 2 of the Employment Act, 2007 and found the claimants were paid monthly, not daily; the respondent's own evidence was that payment was monthly; advances could be given; and unpaid leave was inconsistent with casual engagement. All four indicators pointed away from casual status.

p. 2
02

Surcharge for salary advances, gross negligence and misappropriation

Holding

The respondent failed to establish liability against any of the claimants

Reasoning

Salary advances were inconsistent with the respondent's admitted failure to pay salaries for months (least admitted being 5.5 months). No disciplinary proceedings were held against the claimants. The minutes relied on were of a meeting held on 12.07.2014, after the claimants had left employment and after the suit was filed on 20.05.2014, making them an afterthought without due process.

03

Unpaid salaries

Holding

Each claimant awarded salary for 15 months as prayed

Reasoning

The respondent admitted owing salaries but failed by evidence to establish the period or amounts it had paid. The muster roll filed showed clear discrepancies (e.g. February 2013 showing 31 days worked when the month had 28) and the primary check-in and out register was not filed, so the claimants' claim of 15 months' unpaid salary was accepted on a balance of probability.

p. 2
04

House allowance and leave

Holding

Claimants entitled to house allowance and pay in lieu of annual leave

Reasoning

The claimants were not provided housing accommodation and were not paid the 15% house allowance provided for in the wage orders. The casual-worker defence failed since none was a casual worker. There was no evidence that due annual leave was granted, so payment in lieu of leave was awarded as prayed.

p. 3
05

Reinstatement versus reengagement

Holding

Reengagement ordered instead of reinstatement

Reasoning

Although the respondent was willing to reinstate and the claimants were entitled to reinstatement, the court considered the respondent's operations based on crop production and fluctuating market prices and held that an order for reengagement would meet the ends of justice more proportionately.

p. 3

Legal principles established

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  • An employee paid at a monthly rate, eligible for advances and sent on unpaid leave is not a casual employee under section 2 of the Employment Act, 2007
  • Liability for misappropriation or gross negligence cannot be established without administrative disciplinary proceedings and due process
  • Where an employer fails to keep proper records or produces fabricated records, the claimant's account of unpaid salaries is accepted on a balance of probability

Court orders

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  1. 1.Declaration that the letter for unpaid leave dated 9.01.2014 issued to the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th and 9th claimants is null
  2. 2.Respondent to pay each claimant the sums found due totalling Kshs.1,365,699.95 by 1.02.2015, in default interest at court rates from 20.05.2014 until full payment
  3. 3.The 1st, 2nd, 3rd, 4th, 5th, 6th, 7th and 9th claimants to be reengaged in employment with effect from 1.01.2015 in their respective positions and to report to the secretary-manager on 2.01.2015 with full prevailing and lawful benefits including house allowance and salary unless lawfully terminated
  4. 4.Costs of the suit awarded to the claimants fixed at Kshs.35,000.00 for each claimant, totalling Kshs.280,000.00

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and the court's established jurisdiction over employment disputes

Relief refused

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Order for reinstatement back in employment

The court found reengagement more proportionate given the respondent's crop-based operations and fluctuating market prices

Costs

The claimants are awarded costs of the suit fixed at Kshs.35,000.00 for each making a sum of Kshs.280,000.00

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Accordingly, the court finds that none of the claimants was a casual worker.
p. 2Casual employment under section 2 of the Employment Act, 2007
there was no due process of justice in the circumstances of the case
p. 2Surcharge without disciplinary proceedings
the court finds that the claimants validly established that the muster roll was a fabricated piece of record calculated to mislead the court and could not be reliably used to defeat the claimant's claim for unpaid salaries.
p. 3Fabricated employer records
an order for reengagement in that regard will meet the ends of justice more proportionately than the order of reinstatement
p. 3Reengagement as proportionate remedy
The respondent to pay each claimant the sum of money as found due in this judgment being a sum of Kshs.1, 365,699.95 and to pay by 1.02.2015 in default interest to be payable at court rates from the date of the suit being 20.05.2014 till the full payment.
p. 4Final orders - payment and interest
The 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, and 9th claimants are each reengaged in employment with effect from 1.01.2015 in their respective positions and to report to the secretary-manager of the respondent on 2.01.2015 for assignment of duties with full prevailing and lawful benefits including house allowance and salary unless lawfully terminated from employment.
p. 4Final orders - reengagement

Issues in the judgment

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material

Arithmetical inconsistency: the itemised sub-total is Kshs.1,085,699.95 but the final order awards Kshs.1,365,699.95, a difference of Kshs.280,000.00 which equals the fixed costs sum

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, "Gervasio Muriira & 8 others v Mutethia Farmers Co-Operative Society Limited [2014] KEELRC 1492 (KLR)", Case Analysis (2014). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1492/eng@2014-12-19

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