[2025] KEELRC 1766 (KLR)

Tito v Nirma Holdings Limited (Employment and Labour Relations Cause 531 of 2018) [2025] KEELRC 1766 (KLR) (17 June 2025) (Judgment)

Neutral citation: [2025] KEELRC 1766 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Employment and Labour Relations Cause 531 of 2018

HS Wasilwa, J

June 17, 2025

Between

Jackson Mutisya Tito

Claimant

and

Nirma Holdings Limited

Respondent

Judgment

1. The Claimant instituted this claim vide a Memorandum of Claim dated 12th April 2018 on grounds that his employment was unlawfully and unfairly dismissed; and prays for judgment against the Respondents for: -a.A declaration that the dismissal of the Claimant from employment was unfair and unlawful and that the Claimant is entitled to payment of his terminal dues and compensatory damages;b.An order for the Respondent to pay the Claimant his due terminal benefits and compensatory damages totalling to Kshs. 949,000;c.Interest on (b) above from the filing till full payment;d.Costs of this suit plus interest thereon.

Claimant’s Case 2. The Claimant states that he was employed by the Respondent on September 2008 as a Machine Operator where he worked diligently and to the Respondent’s satisfaction until his dismissal. His last salary was Kshs. 15,000.

3. The Claimant states that in the course of his duties on 16th April 2016, he was involved in an accident at the Respondent’s premises causing him severe bodily injuries and consequently requiring him to seek immediate medical attention at Kenyatta National Hospital.

4. The Claimant states that his personal efforts to seek compensation from the Respondent for the injuries suffered bore no fruits forcing him to employ the services of Okao & Co. Advocates who proceeded to formally demand the compensation and subsequently served upon the Respondent pleading together with summons to enter appearance at Milimani Commercial Courts in CMCC No.8655/2016.

5. The Claimant states that upon the Respondent being served on 21st January 2017, he was called by the Respondent’s Manager commonly known as ‘Mr. Mzito’ who informed him that pursuant to his actions to sue the company, his services were no longer required and he stood dismissed.

6. The Claimant states that during the duration of his service, the Respondent neither provided him with a housing facility nor paid him housing allowance.

7. It is the Claimant’s case that the Respondent’s action to dismiss him for instituting a civil claim for compensation from injuries sustained while on duty is unlawful and against the provisions of the Constitution, the Employment Act, the principles of natural justice and the tenets of good and fair labour practices.

8. The Claimant states that the Respondent ignored due process in haste to summarily dismiss his employment.

9. It is the Claimant’s case that as a result of the illegal and unfair dismissal, he suffered abrupt loss of income and inability to meet his continuing obligations causing him to suffer damages for which he seeks compensation.

Respondent’s Case 10. In opposition to the Claim, the Respondent filed a Memorandum of Reply dated 12th June 2018.

11. The Respondent states that the Claimant was never employed from the year 2008 up to the year 2017 as alleged. The Claimant used to be engaged in casual employed from time to time as would be mutually agreed by the parties and on a fixed pay.

12. The Respondent states that the issue in respect to the injuries sustained by the Claimant while on duty are subject of another court proceedings hence sub-judice.

13. It is the Respondent’s case that it never dismissed the Claimant as alleged but he was assigned different duties on medical grounds which he reluctantly took up and worked at the time he wished.

14. The Respondents state that upon receipt of payment of his salary of January 2017, the Claimant disappeared and never came back to employment. Efforts to contact the Claimant failed as he would disconnect calls made to him.

15. The Respondent denies dismissing the Claimant from employment as alleged and states that it has always been willing to have the Claimant resume duties.

Evidence in Court 16. The Claimant (CW1) adopted his witness statement dated 12th April 2018 as his evidence in chief and produced his filed bundle of documents dated even date as his exhibits.

17. During cross examination, CW1 testified that he was a permanent employee as a Machine Operator as evidenced in his NSSF statement. He worked from 2008 to 2018.

18. CW1 testified that he never went on leave and he only rested when he went for off days. He worked from 7. 30 am to 4. 30 pm but he has no evidence that he was working overtime.

19. CW1 testified that they were not issued with any payslips.

20. CW1 testified that he was dismissed verbally.

Claimant’s Submissions 21. The Claimant submitted on four issues: - Whether the Claimant was engaged as a casual employee; whether due process was followed before dismissing the Claimant; whether the Claimant is entitled to the prayers sought; and who should bear the costs of this suit.

22. On the first issue, Claimant relied on the definitions of an employee and a casual employee as provided under Section 2 of the Employment Act as follows:“employee" means a person employed for wages or a salary and includes an apprentice and indentured learner; and"casual employee" means a person the terms of whose engagement provide for his payment at the end of each day and who is not engaged for a longer period than twenty-four hours at a time

23. The Claimant submitted that he was not a casual worker because he was engaged for a longer period than twenty-four hours at a time. He served for many days without any break in his service; and he further served for more than three continuous months and the Respondent was obligated to reduce his contract of service in writing as provided under Section 9(1) of the Employment Act.

24. It is the Claimant’s submissions that having worked for a number of continuous working days not less than one month and performing work which could not reasonably be expected to be completed within a number of working days amounting to the equivalent of three months or more as envisaged in Section 37 of the Employment Act; the Claimant’s casual service became deemed terminable by 28 days’ notice under Section 35(1)(c) of the Act and converted so the terms and conditions of service as provided in the Act became applicable as provided in Section 37(3) of the Act.

25. The Claimant submitted that this aspect was buttressed by the authority of Chemelil Sugar Company v Ebrahim Ochieng Otuon & 2 others [2015] KECA 202 (KLR) where the court was of the view that employees who were initially engaged as casual employees and worked in various capacities for periods ranging between one year and fifteen years had their respective contracts of service converted to term contracts by operation of law under Section 37 of the Employment Act.

26. On the second issue, the Claimant submitted that contrary to Sections 43 and 45(2) of the Employment Act no valid reasons were given for his dismissal and further he was never subjected to any disciplinary hearing.

27. The Claimant submitted that the Respondent failed to call any witnesses or provide any evidence to support its claim that the Claimant was a casual employee and his dismissal was lawful. In North End Trading Company Limited (Carrying on the Business under the registered name of Kenya Refuse Handlers Limited v City Council of Nairobi [2019] KEHC 10180 (KLR) it was held that:“It is my view, that a party to a case having filed his pleadings should call evidence where the matter is considered to proceed by way of evidence. It is trite law that where a party fails to call evidence in support of its case, the party’s pleading are not to be taken as evidence, but the same remain mere statements of fact which are of no probative value since the same remain unsubstantiated pleading which have not been subjected to the required test of cross-examination. A defence in which no evidence is adduced to support it cannot be used to challenge the plaintiff’s case. The failure to call evidence means that the evidence adduced by the plaintiff remain uncontroverted and therefore unchallenged. In such a situation the plaintiff is taken to have proved its case on balance of probability in absence of the defendant’s evidence.”

28. The Claimant submitted that he gave evidence which was unchallenged and produced documents in support of his claim. His employment was unlawfully terminated, he was never accorded a fair hearing prior to the dismissal. The Respondent’s action was contrary to the provisions of Article 41 of the Constitution and Sections 43 and 45 of the Employment Act.

29. On the third issue, the Claimant submitted that he has clearly illustrated that his employment was unlawfully dismissed thus he is entitled to his terminal dues as sought herein.

Respondents’ Submissions 30. The Respondents submitted on four issues: - whether the Claimant was engaged as a casual employee; whether due process was followed before dismissing the Claimant; whether the Claimant is entitled to the prayers sought; and whether the Claimant is entitled to costs and interest of the suit.

31. On the first issue, the Respondent submitted that the Claimant used to be engaged in casual employment in broken period from time to time as would be mutually agreed by the parties on a fixed day.

32. On the second issue, the Respondent submitted that the Claimant has not present any contract or document to show terms of employment nor a termination letter to that effect. Further, neither the Respondent nor the Claimant produced a dismissal letter as proof.

33. It is the Respondent’s submission that the Claimant disappeared and never came back for employment upon receipt of the salary for the month of January 2017; and efforts to contact hom failed as he disconnected calls made to him.

34. On the prayers sought, the Respondent submitted that Section 107 of the Evidence Act provides that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.

35. On costs, the Respondent submitted that it is trite law that a party is bound by their pleadings. The Claimant’s testimony does not support his claim that the accident was caused by the Respondent’s negligence and also that he was wrongfully terminated.

36. It is the Respondent’s submissions that no evidence has been present before this court to show that the Claimant is entitled to the prayers sought.

37. I have examined the evidence and submissions of the parties herein. From the claimant’s NSSF statement produced as evidence by the claimant the claimant was an employee of the respondents in 2014 to 2015 and the respondents made remittances towards his NSSF contributions. The date of employment may not have been clear but as from 2014 and 2015 it is evident that the claimant worked for the respondents continuously as evidenced from the NSSF remittances.

38. The claimant has averred that he was involved in an accident at the respondent’s premises in 2016. He filed a claim for compensation in 2017. He was then dismissed by the respondents.

39. The respondents aver that the claimant absconded duty in January 2017. The respondents have not submitted any evidence that they tried to seek him out and even issued him with a notice to show cause to explain why he should not be dismissed for absconding duty. The argument that he absconded duty therefore has no basis.

40. The claimant was terminated and the circumstances under which he was terminated are unclear and there is no evidence that he was subjected to any disciplinary hearing. It is therefore my finding that the termination was unfair and unjustified as per section 45(2) of the Employment Act which states as follows:(2)A termination of employment by an employer is unfair if the employer fails to prove―a.that the reason for the termination is valid;b.that the reason for the termination is a fair reason―i.related to the employees conduct, capacity or compatibility; or(ii)based on the operational requirements of the employer; and(c)that the employment was terminated in accordance with fair procedure.

41. In terms of remedies, having found for the claimant, I find he is entitled to the following remedies:-1. 1 months’ salary in lieu of notice = 15,000/-2. Leave for last year of service not taken 15,000/-.3. House allowance not paid for the duration of service = 15% of 15,000x 12 months x 8 years = 216,000/-4. 8 months’ salary as compensation for the unfair termination = 8x15,000 = 120,000/-Total = 366,000/- less statutory deductions.5. The respondents will pay costs of this suit plus interest at court rates with effect from the date of this judgment.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 17TH OF JUNE, 2025. HELLEN WASILWAJUDGE