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ELRCPartially AllowedNot stated in judgment· [2019] KEELRC 35 (KLR)

Joseph Makau Mutava v Kenya Builders Co. Ltd [2019] KEELRC 35 (KLR)

Employment and Labour Relations Court of Kenya
20 December 2019
1,321 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that a casual worker who couldn't prove continuous employment over a month keeps casual status, losing unfair dismissal protections.

What this practically means

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Executive summary

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The claimant, a loader and turnboy, sued the respondent on 26.7.2015 seeking compensation for unfair termination, salary in lieu of notice, leave pay, service pay and overtime. He alleged he was employed from February 2013 at Kshs. 510 per day and was verbally dismissed on 3.3.2015 after suing the company over a workplace injury. The respondent denied constructive or unfair dismissal, contending the claimant was a casual, piece-work employee paid weekly, engaged from May 2014, and offered Kshs. 7,650 as service pay in good faith. The court framed three issues: whether casual employment converted to permanent employment, whether services were unfairly terminated, and whether reliefs should be granted. Applying section 37(1) of the Employment Act, the court held the claimant failed to prove continuous employment for the statutory period; his varying weekly pay reflected irregular days worked, so he remained a casual employee throughout. Consequently, his engagement was terminable at the end of each day and was outside the protections of sections 35(1)(c) and 45 of the Employment Act, defeating the unfair termination, notice and leave claims. The overtime claim failed for want of particulars and evidence. Judgment was entered for the claimant only for the admitted service pay of Kshs. 7,650 as an ex gratia payment, with each party bearing their own costs. The suit was thus partially allowed.

Key legal issues

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01

Whether casual employment converted into permanent employment

Holding

The claimant failed to prove continuous work for the statutory period; his employment never converted and remained casual throughout

Reasoning

Section 37(1) of the Employment Act requires proof of continuous working days aggregating not less than one month, or work not reasonably expected to be completed within three months. The claimant admitted he was paid a varying daily wage on a weekly basis, consistent with non-continuous engagement. The respondent's manager explained the varying weekly pay by reference to varying days worked per week. The court found the claimant did not discharge his burden on a balance of probability.

p. 2
02

Whether the claimant was unfairly terminated

Holding

No, because as a casual employee his employment was terminable at the end of each day and outside the protections of sections 35(1)(c) and 45 of the Employment Act

Reasoning

The protections requiring 28 days' written notice (section 35(1)(c)) and a valid reason plus fair hearing before termination (section 45) apply to employees with that statutory status. Having found the claimant was a casual employee at all material times, his engagement was terminable daily and the unfair termination claim was not tenable.

p. 2
03

Whether the reliefs sought should be granted

Holding

Only service pay of Kshs. 7,650, admitted by the respondent, was awarded; all other heads were dismissed

Reasoning

Compensation for unfair termination, notice and leave failed with the finding of casual employment. The overtime claim failed for want of particulars and evidence. Service pay of Kshs. 7,650 was admitted by the respondent as an ex gratia payment and judgment was entered for that sum, with each party bearing own costs.

p. 3

Legal principles established

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  • Under section 37(1) of the Employment Act, casual employment converts to employment payable monthly where the employee works a continuous period equivalent to not less than one month or performs work not reasonably expected to be completed within three months or more
  • A claimant alleging continuous employment bears the burden of proving it on a balance of probability, failing which the casual status is rebutted
  • Casual employment terminable at the end of each day is not subject to the notice and unfair termination protections of sections 35(1)(c) and 45 of the Employment Act

Court orders

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  1. 1.Judgment entered for the claimant in the sum of Kshs. 7,650.00 as service pay admitted by the respondent as an ex gratia payment.
  2. 2.Each party to bear their own costs.
Jurisdiction invoked
Original employment and labour relations jurisdiction (suit filed 26.7.2015 seeking reliefs for unfair termination, notice, leave pay, service pay and overtime)

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, "Joseph Makau Mutava v Kenya Builders Co. Ltd [2019] KEELRC 35 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/35/eng@2019-12-20

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