Joseph Maina Mwangi v Gathare Bar Hotel & Boarding House [2021] KEELRC 1424 (KLR)
The bottom line
#A Kenyan court ruled that a watchman employed casually for seven years was legally a permanent employee, so his dismissal without notice or a hearing was unfair.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the claimant, employed on casual/oral terms, ceased to be a casual employee and became protected under section 37 of the Employment Act, 2007
- 2.Whether the claimant's employment was unfairly terminated on 30th July, 2015
- 3.Whether the respondent's counter-claim for 7 days' notice pay for alleged desertion is deserved
- 4.What remedies (notice pay, compensation, leave pay, severance pay, underpayments, certificate of service) are due
Key legal issues
#Conversion of casual employment under section 37 of the Employment Act, 2007
The claimant, having worked as a casual employee from May 2008 to 30th July 2015, ceased to be a casual worker and became protected under section 37, entitled to the rights and benefits under the Act
The court applied the established doctrine that continuous casual employment in duties not expected to end converts the contract by operation of law. Relying on Court of Appeal authority under section 37, the claimant's seven-year continuous service as a watchman/security guard converted his oral casual contract into a term contract entitling him to monthly wages, leave and other statutory benefits.
Whether the termination of the claimant's employment was unfair
The termination was unfair; there was no valid reason, notice or hearing
The respondent alleged the claimant absconded after requesting his wages, but failed to attend the hearing and produced no work records under section 10(6) and (7) of the Employment Act. The court found that even desertion requires notice, hearing under section 41(2) and demonstration of measures taken. The claimant's testimony that he was dismissed without notice was more probable, so termination without valid reason or hearing was unfair.
Entitlement to remedies: notice pay, leave pay, severance pay and underpayments
Notice pay of Ksh.10,954.70 (per applicable Wage Orders for an accommodated night guard), leave pay of Ksh.16,431 limited to the last 18 months under section 28, and underpayments of Ksh.320,394 per the applicable Wage Orders were awarded; severance pay was declined as the case did not fall under section 40
The court applied the applicable Wage Orders to compute a night guard's gross wage and awarded notice on that basis. Leave pay was restricted to basic pay for the last 18 months under section 28 of the Act. Severance pay is payable only under section 40 (redundancy), which did not apply. Underpayments were computed month-by-month against the Wage Order rates for the period May 2009 to July 2015.
Legal principles established
#- A casual employee in continuous employment undertaking duties not expected to end ceases to be a casual worker and becomes protected under section 37 of the Employment Act, 2007
- An employee alleged to have deserted duty is subject to summary dismissal only upon notice and hearing under section 41(2) of the Employment Act, and a report should be filed with the Labour Officer
- It is not sufficient for an employer to cite the employee for desertion; the employer must demonstrate the measures taken to address the alleged misconduct
- Employment must terminate for a valid reason and upon the employee being given a hearing and notice
Court orders
#- 1.Judgment entered for the claimant against the respondent in the following terms: (a) Notice pay Ksh.10,954.70; (b) Underpayments Ksh.320,394; (c) Leave pay Ksh.16,431; (d) Certificate of service shall issue; and (e) Costs of the suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment and labour relations claims (Employment Act, 2007)
Relief refused
#Compensation for 12 months (Ksh.146,653.20)
Not awarded among the final remedies; the court held the dues awarded would adequately compensate the claimant
Severance pay for 7 years (Ksh.42,778.85)
Severance pay is only due under section 40 of the Employment Act and the case did not qualify as one such case
Respondent's counter-claim for 7 days' notice pay (Ksh.1,166.55)
The court found the claimant's version of events more probable and found unfair termination instead; the counter-claim was not allowed
Costs
Costs of the suit awarded to the claimant
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Where an employee is employed on causal terms and remains in the continuous employment and or service of the employer undertaking duties which ordinarily are not expected to end and be paid at the end of the day, such an employee ceases to be a casual worker and becomes protected under the provision of section 37 of the Employment Act, 2007 (the Act).
It is not sufficient for an employer to cite the employee for desertion of duty. It must be demonstrated what measures were taken to address such misconduct.
Accordingly, judgement is hereby entered for the claimant against the respondent in the following terms; a. Notice pay ksh.10,954.70; b. Underpayments ksh.320,394; c. Leave pay ksh.16,431; d. Certificate of service shall issue; and e. Costs of the suit.
Issues in the judgment
#The judgment states the claimant sought underpayments 'from May, 2009 to April, 2016' while the claim narrative and computation cover May 2009 to July 2015, a period inconsistency
The judgment records that a hearing date was 'located' for 26th January, 2021 while stating the hearing occurred on 23rd November, 2020 - apparent date confusion in the narrative
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Maina Mwangi v Gathare Bar Hotel & Boarding House [2021] KEELRC 1424 (KLR)", Case Analysis (2021). Cause No. 2264 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1424/eng@2021-02-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.