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ELRCPartially AllowedNot stated in judgment· [2018] KEELRC 464 (KLR)

Kazungu Ngari Yaa v Mistry V. Naran Mulji & Co [2018] KEELRC 464 (KLR)

Employment and Labour Relations Court
21 December 2018
794 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court awarded a former worker Kshs. 140,883 after ruling his employer wrongly treated him as a casual employee despite 25 years of service.

What this practically means

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Executive summary

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The Claimant was employed by the Respondent in 1986 as a Shamba Boy at a daily wage of Kshs. 52 and later promoted to Security Guard, earning Kshs. 9,000 monthly when his contract was terminated on 6th August 2011. He claimed unfair termination, unpaid house allowance, rest days, annual leave, notice pay, and 12 months' compensation. The Respondent denied the claims, asserting he was a casual employee earning Kshs. 200/300 daily who deserted employment. An ex parte judgment of 27th June 2014 awarded the Claimant service pay, August 2011 wages and notice pay, but was set aside by consent in November 2014. After the Claimant's fresh testimony was stood down and settlement negotiations failed, the parties agreed to have the claim determined under Rule 21 of the ELRC Procedure Rules, 2016. The Court found nothing on record to justify a different judgment from the one set aside: the Claimant offered no materially new evidence, while the Respondent's payment vouchers did not discount the Kshs. 9,000 monthly rate, which was supported by pay slips. The Court held it was a serious omission to characterize an employee of 25 years as a casual. It re-granted the earlier judgment: notice pay of Kshs. 9,000, six days' wages for August 2011 at Kshs. 2,076, and service pay of Kshs. 129,807, totalling Kshs. 140,883, with no order on costs.

Key legal issues

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01

Status of the Claimant - casual or regular employee

Holding

The Respondent's characterization of the Claimant as a casual employee after 25 years of service was improper; the monthly rate of Kshs. 9,000 was supported by pay slips

Reasoning

The Respondent claimed the Claimant earned Kshs. 200/300 daily as a casual. The Claimant computed Kshs. 300 by 30 days to arrive at Kshs. 9,000 monthly, a figure supported by pay slips exhibited by the Claimant and not discounted by the Respondent's vouchers. Given his long service, casual characterization was a serious omission by the Respondent.

p. 2
02

Determination under Rule 21 of the ELRC Procedure Rules, 2016 on the record

Holding

The Court re-granted the same judgment as the set-aside ex parte judgment, as neither party placed materially different material before it

Reasoning

After the ex parte judgment was set aside by consent, the Claimant gave incoherent evidence and offered nothing new, while the Respondent made a general denial unsupported by its payment vouchers. Negotiations for settlement failed. On the material before it, the Court was persuaded to grant the same judgment in favour of the Claimant as was earlier granted.

p. 2

Legal principles established

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  • An employee who has worked for a long period cannot properly be characterized as a casual employee, and failure to pay recognition and social security entitlements is a serious omission by the employer
  • Where no new evidence, pleadings or submissions are placed before the Court after an ex parte judgment is set aside, the Court may re-grant the same judgment on the material on record

Court orders

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  1. 1.The Respondent shall pay to the Claimant 1 month wages in lieu of notice at Kshs. 9,000; 6 days' wages for work done in August 2011 at Kshs. 2,076; and service pay at Kshs. 129,807- total Kshs. 140,883
  2. 2.No order on the costs
Jurisdiction invoked
Employment and Labour Relations Court [Procedure] Rules 2016, Rule 21

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, "Kazungu Ngari Yaa v Mistry V. Naran Mulji & Co [2018] KEELRC 464 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/464/eng@2018-12-21

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