Maluki & 4 others v Kaluworks Limited (Cause 286, 253, 289, 290 & 291 of 2017 (Consolidated)) [2023] KEELRC 2264 (KLR)
The bottom line
#Kenya's Employment Court ruled that long-serving casual workers are legally protected employees, and employers must prove abandonment through formal notice before treating absences as job abandonment.
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 claims are time barred under Section 90 of the Employment Act
- 2.Whether the claimants, employed as casuals/general labourers, were protected under Section 37 of the Employment Act
- 3.Whether the claimants' employment was unfairly terminated or they abandoned their own employment
- 4.What remedies (notice pay, compensation, leave pay, underpayments, service pay) are due to each claimant
Key legal issues
#Limitation under Section 90 of the Employment Act
All claims were filed within three years of cessation of employment and are not time barred
Section 90 allows three years from the act or, for continuing injury, twelve months from cessation. At the end of employment, all dues and benefits may be claimed within three years. Each claim filed on 21 April 2017 (Cause 253 on 6 April 2017) fell within three years of each claimant's last working day.
Conversion of casual employment to protected employment
Each claimant having worked continuously for periods beyond one month, their employment converted to protected employment under Section 37
The claimants worked without stoppage for periods beyond 24 hours for a casual employee and served for years. Under Section 37, continuous casual engagement aggregating over one month automatically converts to a contract of service with statutory benefits and protection.
Unfair termination versus abandonment
The respondent failed to prove abandonment; terminations were unfair. The respondent's own account that claimants absconded required written notice to the labour officer
An employee cannot be found to have terminated own employment absent notice to resign. Alleging abandonment requires written notice and, under Section 18(5)(b), a report to the labour officer within seven days. No such notice issued, so the claimants' employment terminated unfairly and without lawful cause.
Underpayments
Only Arnold Kea (machine operator) was underpaid; the general labourers earned above the applicable minimum wage
The court compared last wages against Wage Order rates for Mariakani, Kilifi County. The general labourers' daily wages exceeded the minimum, which also covered house allowance. Arnold Kea's wage fell below the machine operator's minimum rate, entitling him to arrears of Kshs.156,187.20.
Service pay
Service pay is not payable because NSSF dues were deducted and remitted
Claimants' own witness confirmed NSSF contributions were deducted and remitted; pension entitlement through NSSF disqualifies service pay.
Legal principles established
#- A claim for terminal dues accrues at cessation of employment and must be filed within three years under Section 90 of the Employment Act
- An employee engaged casually but working continuously beyond one month is deemed to have a protected contract of service under Section 37 of the Employment Act
- Abandonment of duty by an employee must be demonstrated through written notice to the labour officer under Section 18(5)(b); otherwise termination is unfair
Court orders
#- 1.Judgment for the claimants against the respondent: Cause No.286 of 2017 Fadhili Mbwele Maluki - notice pay Kshs.9,540, compensation Kshs.9,540, leave pay Kshs.9,858
- 2.Cause No.290 of 2019 Arnold Kea - underpayment Kshs.156,187.20, notice pay Kshs.13,560, compensation Kshs.13,560, leave pay Kshs.14,012
- 3.Cause No.291 of 2017 Munga Ngala Ndegwa - leave pay Kshs.9,672
- 4.Cause No.289 of 2017 Joseph Kalama Tsuwi - notice pay Kshs.9,540, compensation Kshs.9,540, leave pay Kshs.9,858
- 5.Cause No.253 of 2017 John Mruu Kombo - notice pay Kshs.7,935, compensation Kshs.7,935, leave pay Kshs.8,199.50
- 6.Each party to bear own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction under the Employment Act, 2007 over claims for unfair termination and employment dues
- Consolidated with
- ELRC Cause No.289 of 2017, ELRC Cause No.290 of 2017 (referred to as 290 of 2019), ELRC Cause No.291 of 2017, ELRC Cause No.253 of 2017
Relief refused
#Service pay
NSSF dues were deducted and remitted by the respondent, so service pay is not due
Underpayments for general labourer claimants
Last wages paid were above the applicable minimum wage under the Wage Orders
Claims for pension or provident fund registration
Not found proven; NSSF contributions were deducted and remitted
Costs
Each party to bear own costs.
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.
In terms of Section 90 of the Act all claims are filed in time, Cause No.253 of 2017 having been filed on the eve of his very last day on 6 April 2017.
under the general terms, each claimant without a written contract of service became protected under Section 37 of the Act.
Employment terminated unfairly and without any lawful cause justified in law.
Accordingly, judgment is hereby entered for the claimants against the respondent in the following terms;
Each party to bear own costs.
Issues in the judgment
#Internal inconsistency in case number for Arnold Kea's cause - described as Cause No.290 of 2017 early in the judgment but as Cause No.290 of 2019 in the findings and final orders
Internal inconsistency on Cause No.253 of 2017 - the memorandum of claim is described as filed in 'Cause No.253 of 2019'
The claimant who testified, Munga Ngala Ndegwa, is identified as the claimant under Cause No.253 of 2017, whereas the disposition for that cause is in the name of John Mruu Kombo
The judgment states a notice was served on the labour officer in respect of Munga Ngala Ndegwa, which appears inconsistent with the general finding that no notice to the labour officer issued
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Maluki & 4 others v Kaluworks Limited (Cause 286, 253, 289, 290 & 291 of 2017 (Consolidated)) [2023] KEELRC 2264 (KLR)", Case Analysis (2023). ELRC Cause No.286 of 2017 (lead file; consolidated with Cause Nos. 289, 290, 291 and 253 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2264/eng@2023-09-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.