REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KISUMU

CAUSE NO. 306 OF 2017

SIMEON JUMBA MNAMBUSI...........................................CLAIMANT

v

CYGNET HOLDINGS t/a FERRIES BAKERIES...........RESPONDENT

JUDGMENT

1. Simeon Jumba Mnambusi (the Claimant) sued the Cygnet Holdings t/a Ferries Bakeries (the Respondent) on 10 July 2017 and he stated the Issue in Dispute as:

 Unfair termination of employment.

2. The Respondent filed its Statement of Response on 24 August 2017 and witness statement and documents on 30 July 2018.

3. The Cause was heard on 7 December 2020 when the Claimant testified and on 9 December 2020 when the Respondent’s witness testified.

4. The Claimant filed his submissions on 22 March 2021 (should have been filed/served on or before 9 January 2021) while the Respondent had filed its submissions on 18 March 2021.

5. The Court has considered the pleadings, evidence and submissions.

Nature of contractual relationship

6. The Claimant asserted that he was employed as a loader by the Respondent in November 2011 but the Respondent contended that the Claimant was employed intermittently from 2011 to 2014. It was also contended that he was a squad leader who would be given monies to pay other loaders.

7. To support its case the Respondent filed copies of petty cash vouchers and muster roll.

8. The copies of the petty cash vouchers show that the Claimant would be paid for the number of bags he offloaded/transferred. The payments varied from Kshs 232/- to nearly Kshs 11,000/-.

9. The copies of vouchers also evidence that payments were made from 2011 to 2014.

10. Section 9(1) of the Employment Act, 2007 requires the employer to draw up a written contract under certain circumstances. The provision does not limit the circumstances to the type of contractual services offered, whether casual, piece-rate or intermittent.

11. It is clear that the Claimant offered services to the Respondent for more than 3-months. The Respondent was thus under a statutory duty to draw up a written contract setting out the particulars set out in section 10(1) & (2) of the Act. The particulars include job description, form and nature of the contract and hours of work.

12.  Since the Respondent did not issue the written contract, the Court invokes section 10(7) of the Employment Act, 2007 to find that the Claimant was not a casual employee and was entitled to the protections/entitlements assured to all employees by the Employment Act, 2007.

Unfair termination of employment

13. The Claimant pleaded his employment was terminated in March 2017. He did not set out the exact date.

14. In the witness statement which was adopted as part of evidence in Court, the Claimant did not disclose the date of termination.

15. Even during oral testimony, the Claimant did not disclose the exact date of termination of employment nor bother to reveal the details and/or name of the person who allegedly terminated his employment unfairly.

16. Pursuant to section 47(5) of the Employment Act, 2007, the Claimant had the initial burden of proving that an unfair termination of employment had occurred. The threshold is a low one.

17. The Claimant did not discharge the burden.

Conclusion and Orders

18. From the foregoing, the Court finds that the Cause has no merit.

19.  Parties did not file submissions within agreed timelines and therefore each party to bear own costs.

DELIVERED THROUGH MICROSOFT TEAMS, DATED AND SIGNED IN KISUMU ON THIS 24TH DAY OF MARCH 2021.

RADIDO STEPHEN, MCIARB

JUDGE

APPEARANCES

For Claimant  Mr Nyanga/Ms Willie instructed by Nyanga & Co. Advocates

For Respondent   Mr Nyamurongi instructed by Nyamurongi & Co. Advocates

Court Assistant  Chrispo Aura