1. Through the Memorandum of Appeal dated 3rd October, 2024 the Appellant appeals against the Judgement of Honourable B.M Cheloti PM Principal Magistrate delivered on on 9th September, 2024 on grounds inter alia
a) That the Learned Magistrate erred in fact and in law by failing to sufficiently consider thereby disregarding the evidence as filed and adduced by the Appellant in the matter or at all.
b) The Learned Magistrate erred in failing to consider and appreciate the uncontroverted evidence contained in the Appellant's defence that shows that the Respondent's allegations with regard to his alleged termination were false.
c) The Learned Magistrate misdirected herself when she came to a finding that the Respondent was indeed terminated by the Appellant despite the Respondent's own testimony that confirmed that she was a contracted employee.
2. The Appellant therefore prayed that the Appeal be allowed and the judgment and consequential orders made by the Learned Magistrate in the trial court allowing the claim be set aside and the same be substituted with an order for dismissal and the appellant be awarded the costs of the appeal.
3. The Appeal was disposed of by written submissions.
APPELLANT’S SUBMISSIONS
4. The Appellant’s advocate Mr. Kandere filed two sets of submission despite the fact that the two appeals were consolidated. Upon perusal however the submissions were similar save for the identity of the two appellants.
5. Counsel submitted among others that the trial court lacked jurisdiction to entertain constitutional claim for discrimination. He stated that article 27 of the Constitution read together with section8 of the Magistrate Courts Act were clear on this. According to counsel, the jurisdiction to entertain claims under the constitution by magistrates is only in respect to rights under article 25. The respondent’s claims for discrimination was expressly under article 27 hence the trial court lacked jurisdiction.
6. Counsel further submitted that the trial court lacked jurisdiction to award unpaid leave and notice pay. These being continuing injuries were instituted more than twelve months after termination of employment hence statute barred by dint of section 90 of the Employment Act. In this regard counsel relied on the decisions of this court namely John Kiiru v. University of Nairobi [2021] eKLR, George Hiram Ndirangu v. Equity Bank Ltd [2015]eKLR, Serah Wairimu Kihara v. Nokia Solutions [2021] eKLR among others.
7. Concerning the status of the respondent’s employment, Counsel submitted that the appellants were never permanent employees but daily wage contracted workers with specific tasks. According to Counsel, the respondents’ witness DW2 in cross-examination stated that they used to visit the appellant’s premises every morning to source for employment and they were paid weekly as opposed to monthly. Counsel further submitted that section 37 of the Employment Act had no applicability in the matter since the respondents had executed valid contracts with the appellant stating the terms of their engagement.
8. Mr. Kandere further submitted that the trial court failed to consider any submissions cited in the opposition to the claim. According to Counsel, the respondents’ themselves confirmed they never applied for any leave and further that the respondents’ failed to demonstrate how they were differentiated from their colleagues to amount to discrimination. Counsel further submitted that the respondents having rejected their own signatures as appearing in the verifying affidavit and application for late registration of birth could not purport to rely on the same as evidence. Mr. Kandere further contended that the appellant having paid the respondents’ wages as per the contract, the respondents’ could not deny their terms of engagement.
9. On the issue of maternity leave, counsel submitted that the respondent’s informed the trial court that they left employment to proceed on maternity leave and returned on 6th August, 2020 and were informed the appellant was no longer hiring female employees who had proceeded on maternity leave. According to counsel however, the respondents’ contracts had expired hence there was no work to resume. Counsel further submitted that the manner in which the respondents alleged to have proceeded on leave was questionable because if they were answerable to shop floor supervisor, it was baffling why they did not make their leave application forms through the supervisor but instead allegedly approached Margaret. According to counsel, the alleged grant of leave by Margaret was therefore false.
10. Counsel further submitted that the appellant’s witness informed the trial court that out of the 16 employees who could not resume work, all except the respondents had resumed work. Counsel therefore submitted that in allegations of discrimination, it was incumbent that the person alleging prove the discrimination before the burden shifts to the respondent. Counsel relied on the SCOK case of Samson Gwer & 5 Others v. KEMRI & 3 Others [2020] eKLR. Counsel further submitted that from the authority cited, it was clear that the burden of proof in allegation for discrimination was beyond balance of probability as advanced on civil matters.
RESPONDENT’S SUBMISSION
11. Counsel for the Respondent Ms. Kang’ethe submitted in the main that although the appellant alleged that the respondents were casual employees employed on fixed term contracts terminating on 5th December, 2019, it could not tell when the respondents started working yet it was the custodian of employee records. Counsel further submitted that although the appellant produced casual workers form allegedly signed by the respondents, it admitted that the signature on the form was different from respondents’ known signatures in their pleadings. The respondents denied signing these forms. According to Counsel, the respondent further admitted that 16 female employees were locked out of employment after proceeding on maternity leave and the appellant met the union on the issue and some employees were allowed back to work except the respondents. The appellant never provided any reason why.
12. According to counsel the trial court properly considered the evidence and came to the correct conclusion that the respondents were not casual employees and that their employment had been converted by dint of section 37(1) of Employment Act. Failure by the appellant to produce the respondents’ employment records could only be construed as unfavourable to its case. Counsel relied on the case of Nyasuguta v. Conference Caterers Ltd [2021]eKLR.
13. Concerning discrimination, Counsel submitted that there was evidence that the appellant’s production manager singled out pregnant female employees, unfairly targeting them for dismissal forcing affected employees to resort to unconventional and harmful methods to conceal their pregnancy. In this regard Counsel relied on the case of Mokaya v. Kithure Kindiki & Associates [2021]eKLR and Paul v. Board of Management Holy Spirit Secondary School [2023]KEELR 194(KLR).
14. On the issue of limitation, Counsel submitted that the claims by the respondents did not fall under continuing injury under section 90 of the Act. According to counsel section 36 provided for payment of wages in lieu of notice upon termination. The respondents were never issued with notice hence were entitled to payment in lieu. Further respondents were not registered with NSSF hence were entitled to service pay. The respondents were also entitled to claim three months’ salary on account of maternity leave. In this regard counsel relied on the case of G4S Security Services (K) Ltd v. Joseph Kamau & 468 others and Vipingo Ridge v. Swaleh Ngonge Mpitta [2022]eKLR.
DETERMINATION
15. This appeal turns around four issues, namely:
i. Whether the trial court had jurisdiction to hear and determine complaints over discrimination in the workplace.
ii. Whether the trial erred in finding that the respondents were permanent employees and not daily wage workers contracted with specific tasks.
iii. Whether the trial court was justified in making the award for compensation as contained in the judgment.
16. This Court as first appellate Court is guided by the principles set out in several decided cases by it or the Court of Appeal. For instance the Court of Appeal for East Africa in the case of Selle & Another v Associated Motor Boat Company Ltd & Others, [1968] EA 123, Sir Clement De Lestang, Vice President of the Court of Appeal for East Africa stated those principles as follows: -
“An appeal to this Court from a trial by the High Court is by way of a retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.”
17. The appellant raised a fundamental question of jurisdiction. That is to say, the trial court had no jurisdiction to hear and determine complaints over discrimination at workplace. According to Mr. Kandere for the appellant the jurisdiction to entertain claims under the constitution by magistrates is only in respect to rights under article 25. The respondent’s claims for discrimination is expressly under article 27 hence the trial court lacked jurisdiction.
18. Section 8 of the Magistrate Court’s Act provides:
“Subject to Article 165(3)(b) of the Constitution and the pecuniary limitations set out in section 7(1), a magistrate's court shall have jurisdiction to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.
(2)The applications contemplated in subsection (1) shall only relate to the rights guaranteed in article 25(a) and (b) of the Constitution”.
19. Article 25(a) concerns violation or infringement of rights relating to freedom from torture and cruel, inhuman or degrading treatment or punishment, freedom from slavery or servitude, the right to fair trial and the right to an order of habeas corpus. Article 27 provides among others that “ a person shall not discriminate directly or indirectly against another person on account of race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth. (emphasis supplied). From the foregoing it is clear that the trial court did not have jurisdiction to hear and determine complaints of discrimination on account of pregnancy by the respondents. This ground of appeal therefore succeeds and the award made in respect thereof set aside.
20. On the issue whether the the respondents were permanent employees and not daily wage workers contracted with specific tasks, the trial court observed as follows:
“…the claimant produced her NSSF statement which indicates the date of registration as 19th July, 2016. It shows the claimant’s NSSF contributions had been irregularly remitted… I am of the opinion that the remittance from the months of July to December, 2018 and from January to May, 2019 consecutively defeats the respondent’s argument that the claimant had been a casual labourer…to compound the above argument, the Court is of the view that the respondent was obligated by section 74 of the Employment Act to furnish this court with employment records from July, 2016 so as to establish that indeed the claimant had not been an employee and that she had been a fixed contract employee on a need to need basis…”
21. Section 37 of the Employment Act provides that where a casual employee has worked for a period or number of continuous working days which amount in aggregate to the equivalent of not less than one month or performs work which cannot reasonably be expected to be completed within a period, or a number of working days amounting in the aggregate to the equivalent of three months or more, the contract of service of the casual employee shall be deemed to be one where wages are paid monthly and section 35(1)(c) shall apply to the contract of service. Section 35(1)(c ) provides for issuance of notice of termination and or payment in lieu of notice. The entire section 37 read as a whole, makes provision for the conversion of a casual employee to regular employee and confers on such employee the rights provided thereunder.
22. As observed by the trial court, the appellant never provided any employment records to demonstrate that the respondents were casual employees. In any event, even if such records were provided, the length of time the respondents had interacted with the appellant as it employees far exceeded one month hence they automatically became regular employees by dint of section 37 of the Act. The trial court was therefore justified to so find. This ground of appeal therefore fails.
23. The trial Court having found as above, the respondents were entitled to one month’s salary in lieu of notice of termination, they were further entitled to pay during maternity leave. Service pay was however not payable now that it was established that the respondents were registered with NSSF. Regarding the maximum compensation for unfair termination, this was justifiable in the circumstances given that there was sufficient evidence that the appellant terminated the respondents service on account of being away on maternity leave.
24. In conclusion, this appeal succeeds only on the issue of service pay and the jurisdiction of the trial court to hear and determine complaints over discrimination which the Court has found and held that it did not have. The other findings of the trial court are found justified and this court will not disturb them.
25. The Appeal being partially successful each party shall bear their own costs.
26. It is so ordered.
Dated at Nairobi this ……… day of…………. 2025
Delivered virtually this……… day of ………….2025
Abuodha Nelson Jorum
Presiding Judge-Appeals Division
a) That the Learned Magistrate erred in fact and in law by failing to sufficiently consider thereby disregarding the evidence as filed and adduced by the Appellant in the matter or at all.
b) The Learned Magistrate erred in failing to consider and appreciate the uncontroverted evidence contained in the Appellant's defence that shows that the Respondent's allegations with regard to his alleged termination were false.
c) The Learned Magistrate misdirected herself when she came to a finding that the Respondent was indeed terminated by the Appellant despite the Respondent's own testimony that confirmed that she was a contracted employee.
2. The Appellant therefore prayed that the Appeal be allowed and the judgment and consequential orders made by the Learned Magistrate in the trial court allowing the claim be set aside and the same be substituted with an order for dismissal and the appellant be awarded the costs of the appeal.
3. The Appeal was disposed of by written submissions.
APPELLANT’S SUBMISSIONS
4. The Appellant’s advocate Mr. Kandere filed two sets of submission despite the fact that the two appeals were consolidated. Upon perusal however the submissions were similar save for the identity of the two appellants.
5. Counsel submitted among others that the trial court lacked jurisdiction to entertain constitutional claim for discrimination. He stated that article 27 of the Constitution read together with section8 of the Magistrate Courts Act were clear on this. According to counsel, the jurisdiction to entertain claims under the constitution by magistrates is only in respect to rights under article 25. The respondent’s claims for discrimination was expressly under article 27 hence the trial court lacked jurisdiction.
6. Counsel further submitted that the trial court lacked jurisdiction to award unpaid leave and notice pay. These being continuing injuries were instituted more than twelve months after termination of employment hence statute barred by dint of section 90 of the Employment Act. In this regard counsel relied on the decisions of this court namely John Kiiru v. University of Nairobi [2021] eKLR, George Hiram Ndirangu v. Equity Bank Ltd [2015]eKLR, Serah Wairimu Kihara v. Nokia Solutions [2021] eKLR among others.
7. Concerning the status of the respondent’s employment, Counsel submitted that the appellants were never permanent employees but daily wage contracted workers with specific tasks. According to Counsel, the respondents’ witness DW2 in cross-examination stated that they used to visit the appellant’s premises every morning to source for employment and they were paid weekly as opposed to monthly. Counsel further submitted that section 37 of the Employment Act had no applicability in the matter since the respondents had executed valid contracts with the appellant stating the terms of their engagement.
8. Mr. Kandere further submitted that the trial court failed to consider any submissions cited in the opposition to the claim. According to Counsel, the respondents’ themselves confirmed they never applied for any leave and further that the respondents’ failed to demonstrate how they were differentiated from their colleagues to amount to discrimination. Counsel further submitted that the respondents having rejected their own signatures as appearing in the verifying affidavit and application for late registration of birth could not purport to rely on the same as evidence. Mr. Kandere further contended that the appellant having paid the respondents’ wages as per the contract, the respondents’ could not deny their terms of engagement.
9. On the issue of maternity leave, counsel submitted that the respondent’s informed the trial court that they left employment to proceed on maternity leave and returned on 6th August, 2020 and were informed the appellant was no longer hiring female employees who had proceeded on maternity leave. According to counsel however, the respondents’ contracts had expired hence there was no work to resume. Counsel further submitted that the manner in which the respondents alleged to have proceeded on leave was questionable because if they were answerable to shop floor supervisor, it was baffling why they did not make their leave application forms through the supervisor but instead allegedly approached Margaret. According to counsel, the alleged grant of leave by Margaret was therefore false.
10. Counsel further submitted that the appellant’s witness informed the trial court that out of the 16 employees who could not resume work, all except the respondents had resumed work. Counsel therefore submitted that in allegations of discrimination, it was incumbent that the person alleging prove the discrimination before the burden shifts to the respondent. Counsel relied on the SCOK case of Samson Gwer & 5 Others v. KEMRI & 3 Others [2020] eKLR. Counsel further submitted that from the authority cited, it was clear that the burden of proof in allegation for discrimination was beyond balance of probability as advanced on civil matters.
RESPONDENT’S SUBMISSION
11. Counsel for the Respondent Ms. Kang’ethe submitted in the main that although the appellant alleged that the respondents were casual employees employed on fixed term contracts terminating on 5th December, 2019, it could not tell when the respondents started working yet it was the custodian of employee records. Counsel further submitted that although the appellant produced casual workers form allegedly signed by the respondents, it admitted that the signature on the form was different from respondents’ known signatures in their pleadings. The respondents denied signing these forms. According to Counsel, the respondent further admitted that 16 female employees were locked out of employment after proceeding on maternity leave and the appellant met the union on the issue and some employees were allowed back to work except the respondents. The appellant never provided any reason why.
12. According to counsel the trial court properly considered the evidence and came to the correct conclusion that the respondents were not casual employees and that their employment had been converted by dint of section 37(1) of Employment Act. Failure by the appellant to produce the respondents’ employment records could only be construed as unfavourable to its case. Counsel relied on the case of Nyasuguta v. Conference Caterers Ltd [2021]eKLR.
13. Concerning discrimination, Counsel submitted that there was evidence that the appellant’s production manager singled out pregnant female employees, unfairly targeting them for dismissal forcing affected employees to resort to unconventional and harmful methods to conceal their pregnancy. In this regard Counsel relied on the case of Mokaya v. Kithure Kindiki & Associates [2021]eKLR and Paul v. Board of Management Holy Spirit Secondary School [2023]KEELR 194(KLR).
14. On the issue of limitation, Counsel submitted that the claims by the respondents did not fall under continuing injury under section 90 of the Act. According to counsel section 36 provided for payment of wages in lieu of notice upon termination. The respondents were never issued with notice hence were entitled to payment in lieu. Further respondents were not registered with NSSF hence were entitled to service pay. The respondents were also entitled to claim three months’ salary on account of maternity leave. In this regard counsel relied on the case of G4S Security Services (K) Ltd v. Joseph Kamau & 468 others and Vipingo Ridge v. Swaleh Ngonge Mpitta [2022]eKLR.
DETERMINATION
15. This appeal turns around four issues, namely:
i. Whether the trial court had jurisdiction to hear and determine complaints over discrimination in the workplace.
ii. Whether the trial erred in finding that the respondents were permanent employees and not daily wage workers contracted with specific tasks.
iii. Whether the trial court was justified in making the award for compensation as contained in the judgment.
16. This Court as first appellate Court is guided by the principles set out in several decided cases by it or the Court of Appeal. For instance the Court of Appeal for East Africa in the case of Selle & Another v Associated Motor Boat Company Ltd & Others, [1968] EA 123, Sir Clement De Lestang, Vice President of the Court of Appeal for East Africa stated those principles as follows: -
“An appeal to this Court from a trial by the High Court is by way of a retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.”
17. The appellant raised a fundamental question of jurisdiction. That is to say, the trial court had no jurisdiction to hear and determine complaints over discrimination at workplace. According to Mr. Kandere for the appellant the jurisdiction to entertain claims under the constitution by magistrates is only in respect to rights under article 25. The respondent’s claims for discrimination is expressly under article 27 hence the trial court lacked jurisdiction.
18. Section 8 of the Magistrate Court’s Act provides:
“Subject to Article 165(3)(b) of the Constitution and the pecuniary limitations set out in section 7(1), a magistrate's court shall have jurisdiction to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.
(2)The applications contemplated in subsection (1) shall only relate to the rights guaranteed in article 25(a) and (b) of the Constitution”.
19. Article 25(a) concerns violation or infringement of rights relating to freedom from torture and cruel, inhuman or degrading treatment or punishment, freedom from slavery or servitude, the right to fair trial and the right to an order of habeas corpus. Article 27 provides among others that “ a person shall not discriminate directly or indirectly against another person on account of race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth. (emphasis supplied). From the foregoing it is clear that the trial court did not have jurisdiction to hear and determine complaints of discrimination on account of pregnancy by the respondents. This ground of appeal therefore succeeds and the award made in respect thereof set aside.
20. On the issue whether the the respondents were permanent employees and not daily wage workers contracted with specific tasks, the trial court observed as follows:
“…the claimant produced her NSSF statement which indicates the date of registration as 19th July, 2016. It shows the claimant’s NSSF contributions had been irregularly remitted… I am of the opinion that the remittance from the months of July to December, 2018 and from January to May, 2019 consecutively defeats the respondent’s argument that the claimant had been a casual labourer…to compound the above argument, the Court is of the view that the respondent was obligated by section 74 of the Employment Act to furnish this court with employment records from July, 2016 so as to establish that indeed the claimant had not been an employee and that she had been a fixed contract employee on a need to need basis…”
21. Section 37 of the Employment Act provides that where a casual employee has worked for a period or number of continuous working days which amount in aggregate to the equivalent of not less than one month or performs work which cannot reasonably be expected to be completed within a period, or a number of working days amounting in the aggregate to the equivalent of three months or more, the contract of service of the casual employee shall be deemed to be one where wages are paid monthly and section 35(1)(c) shall apply to the contract of service. Section 35(1)(c ) provides for issuance of notice of termination and or payment in lieu of notice. The entire section 37 read as a whole, makes provision for the conversion of a casual employee to regular employee and confers on such employee the rights provided thereunder.
22. As observed by the trial court, the appellant never provided any employment records to demonstrate that the respondents were casual employees. In any event, even if such records were provided, the length of time the respondents had interacted with the appellant as it employees far exceeded one month hence they automatically became regular employees by dint of section 37 of the Act. The trial court was therefore justified to so find. This ground of appeal therefore fails.
23. The trial Court having found as above, the respondents were entitled to one month’s salary in lieu of notice of termination, they were further entitled to pay during maternity leave. Service pay was however not payable now that it was established that the respondents were registered with NSSF. Regarding the maximum compensation for unfair termination, this was justifiable in the circumstances given that there was sufficient evidence that the appellant terminated the respondents service on account of being away on maternity leave.
24. In conclusion, this appeal succeeds only on the issue of service pay and the jurisdiction of the trial court to hear and determine complaints over discrimination which the Court has found and held that it did not have. The other findings of the trial court are found justified and this court will not disturb them.
25. The Appeal being partially successful each party shall bear their own costs.
26. It is so ordered.
Dated at Nairobi this ……… day of…………. 2025
Delivered virtually this……… day of ………….2025
Abuodha Nelson Jorum
Presiding Judge-Appeals Division