[2017] KEELRC 546 (KLR)
The court found that, despite the respondent's assertion that the claimant was a casual employee, the evidence established that the claimant worked for an aggregate period of 2.5 months. Under Kenyan law, a casual employee who works for more than one month is deemed a regular employee and is entitled to notice of...
Source-derived case information.
- Citation
- [2017] KEELRC 546 (KLR)
- Parties
- Claimant: Musyoka Munuve; Respondent: Mavji Construction Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1393 of 2014
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- judgment for the claimant
- Judges
- DI Wasike
- Legal Topics
- Casual Employment, Termination Without Notice, Payment in Lieu of Notice, Unfair Termination, Wages, Employment Benefits
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Musyoka Munuve
Claimant
Mavji Construction Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant was a casual or regular employee entitled to notice of termination.
- 2 Whether the claimant was unfairly terminated by the respondent.
- 3 Whether the claimant is entitled to payment in lieu of notice and compensation for unfair termination.
Ratio Decidendi
The court found that, despite the respondent's assertion that the claimant was a casual employee, the evidence established that the claimant worked for an aggregate period of 2.5 months. Under Kenyan law, a casual employee who works for more than one month is deemed a regular employee and is entitled to notice of termination or payment in lieu thereof. The respondent failed to provide such notice or payment, and the termination was therefore unfair. The court awarded the claimant one month's salary in lieu of notice and two months' wages for unfair termination, as well as costs of the suit.
Court Disposition
judgment for the claimant
Orders
- The respondent shall pay the claimant one month's salary in lieu of notice (Kshs 16,710).
- The respondent shall pay the claimant two months' wages for unfair termination (Kshs 33,420).
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF
KENYA AT NAIROBI
CAUSE NUMBER 1393 OF 2014
MUSYOKA MUNUVE ….....…………………………...........CLAIMANT
VERSUS
MAVJI CONSTRUCTION LIMITED………...................RESPONDENT
JUDGEMENT
1. The claimant herein averred that he was working for the respondent as a labourer at construction sites at a weekly wage of Kshs 600. According to him, he had been in the respondent’s employment since July 2009 and worked until January 2009 when his services were terminated.
2. The claimant further averred that the claimant omitted to remit deductions from his pay to NSSF. The claimant further averred that he never went on leave for the period he worked.
3. The respondent denied the claimant’s claim and averred that he was employed at a daily wage of Kshs 557/=. According to the respondent the claimant’s first engagement with the respondent was on 14th August, 2013 as a casual employee and worked on and off between August and November, 2013.
4. In his oral evidence in court, the claimant stated that he was hired as a welder in 2009. At the time of termination they were told there was no more work. They were many of them.
5. From the short evidence adduced by the claimant, it cannot be denied he was a seasonal worker. The court takes judicial notice that the respondent herein is in the construction business hence the hiring of casual labourers in its various sites is not unusual.
6. The current position in law is that any person who though a casual labourer would for purposes of termination services be deemed as a regular employee where such persons engagement is for an aggregate period of more than one month. The claimant herein worked for the respondent for an aggregate period of 2 ½ months. He was therefore entitled to one months’ notice of termination or payment in lieu thereof.
7. The court will therefore award the claimant:
a. One months salary in lieu of notice 16,710
b. Two months wages for unfair termination
of services 33,420
50,130
c. Cost of the suit.
8. It is so ordered.
Dated at Nairobi this 29th day of September, 2017
Abuodha J. N.
Judge
Delivered this 29th day of September, 2017
Abuodha J. N.
Judge
In the presence of :
…………………………………………..Claimant
……………………………………….. Respondent