[2024] KEELRC 1068 (KLR)

Abdi v Mwero (Appeal E113 of 2023) [2024] KEELRC 1068 (KLR) (9 May 2024) (Judgment)

Neutral citation: [2024] KEELRC 1068 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Mombasa

Appeal E113 of 2023

M Mbarũ, J

May 9, 2024

Between

Abdulhakim Hamdi Abdi

Appellant

and

Mwero Kombo Mwero

Respondent

(Being an appeal from the judgment of Hon. Nabibya delivered on 21st November 2023 in Mombasa CMELRC No.62 of 2020)

Judgment

1. The appeal arises from the judgment delivered on 21st November 2023 in Mombasa CMELRC No.62 of 2020. The learned magistrate allowed the respondent’s claim with a finding that there was unfair termination of employment and hence entitled to the following orders;a.Compensation Ksh.45,000;b.3 years leave Ksh.22,500;c.Service pay Ksh.41,538;d.Notice pay Ksh.15,000;e.17 days salary Ksh.9,807;f.Certificate of service;g.Costs.

2. Aggrieved, the appellant has seven (7) grounds of appeal;1. The learned magistrate erred in law and fact by holding that the claimant [respondent] had proved his employment whereas the same was not proved.2. The learned magistrate erred in law and fact by holding that there was no doubt that the claimant's salary was Ksh.12,000 as this was not contested whereas the same was contested and the claimant put to strict proof thereof.3. The learned magistrate erred in law and fact by holding that the claimant’s employment was terminated unfairly whereas an employer-employee relationship was not established between the appellant and the respondent.4. The learned magistrate erred in law and fact by holding that the respondent was entitled to the relief sought under the statement of the claimant and warded the same.5. The learned magistrate erred in law in failing to analyze both parties cases and also failed to consider the evidence adduced and submissions made on behalf of the appellant.6. The learned magistrate failed to give reason and a detailed judgment contrary to the evidence placed by the appellant.7. The learned magistrate erred in the evaluation and analysis of the pleadings and the evidence adduced.

3. The background to this appeal is a claim filed by the respondent against the appellant. He claimed that he was employed as a housekeeper on 1st June 2016 at a wage of Ksh.12, 000 per month and which was increased to Ksh.15, 000 per month. He worked until 18 February 2020 when his employment was unfairly terminated. On 8 February 2020, his father-in-law died and he asked for 3 days off to attend the burial which was allowed but when planning to resume duty, his mother fell sick. He called the appellant to allow him to take her to the hospital. He was allowed another 3 days off. However, on 18 February 2020 when he reported back, Madam Rama the wife to the appellant sent him away and said she did not require his services. The appellant said he could not do anything. He was not paid for days worked or his terminal dues.

4. In response, the appellant denied the employment relationship as alleged and proceeded to make mere denials. That the claims made only apply to one who is employed on permanent and pensionable terms which did not apply to the respondent.

5. Both parties attended and agreed to address the appeal by way of written submissions.

6. The appellant submitted that under Section 107(1) of the Evidence Act, 2007 (the Act) he who alleges must prove. The respondent did not prove the employment relationship which was denied by the appellant. In the case of Alice Wanjiru Ruhiu v Messiac Assembly of Yahweh [2021] eKLR. Without establishing the employment relationship, the claims made are not justified. In the case of Casmir Nyankuru Nyaberi v Mwakirar Agencies Limited [2016] eKLR the court held that the only issue that can apply to invoke the jurisdiction of the court is to establish the employment relationship. There is nothing to suggest an employment relationship between the parties not even the mode of payment through Mpesa statements. The allegations that the paid wage increased from Ksh.12, 000 to Ksh.15, 000 is without any evidence.

7. The appellant submitted that the respondent’s only allegation is that Mama Rama terminated his employment. This is a person unknown to the appellant. The respondent failed to establish any nexus with such a person. In the case of Transport Workers Union v Euro Petroleum Products & Another [2019] eKLR the court held that the union failed to produce any documents to suggest that the grievant was employed by the respondent. Such proof is mandatory before the court can proceed to assess the claims made. The employee has the burden of proof that there existed an employment relationship which he failed to address as held in Wachira v Mbote & another Cause No.821 of 2018.

8. The respondent submitted that he testified that he was an employee of the appellant and would be allocated various duties within the household. The respondent had Mpesa transactions from the appellant as proof of employment. The evidence by the appellant that he sometimes gave the respondent casual jobs is sufficient knowledge of the respondent as the employee.

9. Within the employment relationship, the respondent was unfairly terminated without payment of his terminal dues which were properly assessed by the trial court and should be confirmed. The respondent relied on the case of Walter Anuro Ogal v Teachers Service Commission [2013] eKLR. Under Section 45(4) (b) of the Employment Act, termination of employment must be fair and the employee accorded justice.

Determination 10. This is a first appeal. The court at this point is required to re-evaluate, re-assess, and analyse the entire record and make conclusions. Account must be taken that the trial court had the benefit of hearing the parties in evidence.

11. The employment relationship was contested.

12. Indeed, as submitted by the appellant, once the issue of employment was challenged, this became a material fact that had to be assessed and a finding issued.

13. The respondent asserted that he was employed from 1st June 2016 to 18 February 2020 when the wife to the appellant, Madam Rama sent him away, and when the appellant found the respondent waiting, he could not do anything about it.

14. In response, the appellants made mere denials. Such only applied to the appellant’s disadvantage.

15. Secondly, the appellant responded that the claims made by the respondent only related to an employee who was in permanent and pensionable employment which was not the case.

16. Further, in his evidence before the trial court, the respondent’s evidence that he would be paid in cash was not challenged in any material way. He demonstrated that he was paid through Mpesa transaction on three occasions. He got some money for shopping as part of his duties.

17. In his evidence, the appellant denied ever meeting with the respondent or employing him. He, however, admitted that I do payments on Mpesa for casual labour, I can’t remember what the payment was for. The payment had nothing to do with the claimant.

18. Casual employment is recognized under the law. Sections 7 and 8 of the Employment Act, 2007 (the Act) allow employment on casual terms. Where such employment continues for periods beyond 24 hours or the work being undertaken is continuous and not likely to end within 24 hours, there is conversion of such employment under Section 37 of the Act. The employee becomes protected with rights and benefits under the Act.

19. In the case of Kenyatta University v Esther Njeri Maina [2022], eKLR the court held that an employee who is employed as a casual for beyond 24 hours and continues to serve beyond such period is protected under the law. This position is affirmed in the case of Humphrey Nyaga Thomas & 25 others v. Kenyatta University (2021) eKLR.

20. Where such a casual employee remains in the continuous work of an employer for not less than one month and the casual employee continues to undertake work which in its nature cannot reasonably be expected to be completed within a defined period and such practice continuous in the aggregate and equivalent to 3 months or more, the casual status of such a person is changed to be that of an employee with all rights set out for an employee under the Employment Act, 2007. In addressing the provisions of section 37 of the Employment Act, 2007 with regard to who a causal employee and seasonal contract employee is, the Court of Appeal in Krystalline Salt Limited versus Kwekwe Mwakele & 67 others [2017] eKLR held that;.....casual employment entails engagement for a period not longer than 24 hours at a time and payment made at the end of the day… parliament intended to drawn this distinction and that is why section 37 does not mention piece rate work employees.

21. In this case, the duty to issue an employment contract spelling the terms and conditions thereof was on the appellant as the employer. Where the appellant enjoyed the services of the respondent on a causal basis, Section 10(6) and (7) of the Act required the appellant to keep such records and to produce them in court once the suit was filed. Sections 3 and 20 of the Employment and Labour Relations Court Act, 2011 allow the court to address claims before it without undue regard to technicalities outlined and referenced by the appellant under the Evidence Act. Such does not apply to proceedings before this court. The burden to challenge the nature of employment is on the employer who is legally bound to keep all work records.

22. In this case, the learned magistrate properly found there was employment between the parties and that there was no effort to demonstrate the due process or the justification for termination of employment.

23. What is recognized in these proceedings is that in the majority of employment relationships in households behind public glare and the privacy of private residences and homes, the terms and conditions of employment are casual and largely not subject to the provisions of the law. Such does not only expose the employee but places the employer at a great prejudice. Where a claim such as herein addressed by the respondent arises, the employer bears the burden of disproving the claims made by the employee.

24. Within the employment relationship, without any due process, the learned trial magistrate well analyzed the compensation due at 3 months. Such is fair and reasonable in the circumstances of the case.

25. On the notice pay, without the due process, such is due under Section 35 of the Act.

26. A claim for service pay arises where the employer fails to address the provisions of Section 35(5) and (6) of the Act. The deduction and remittance of statutory dues for the subject employee. This was correctly assessed and awarded.

27. Whatever led to termination of employment, for days worked, Section 18(1) of the Act requires that the employee should be paid the wages due. Further, under Section 51 of the Act, at the end of employment, the employee is entitled to be issued a Certificate of Service.

28. The appeal is therefore found without merit on all grounds. In this regard, the claimed costs ought to be awarded to the respondent together with the costs due for the trial court proceedings.

9. Accordingly, the appeal herein is without merit and is dismissed with costs to the respondent. The appellant is to also pay costs for the lower court proceedings.

DELIVERED IN OPEN COURT AT MOMBASA ON THIS 9 DAY OF MAY 2024. M. MBARŨJUDGEIn the presence of:Court Assistant: Japhet……………………………………………… and ………………………………