Amos Otieno Kasimba v Board of Management Bahati Division Academy [2020] KEELRC 832 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the claimant was an employee of the respondent or an independent contractor
- 2.The date from and to which the employment relationship subsisted
- 3.Whether the termination of employment amounted to a lawful redundancy compliant with section 40 of the Employment Act
- 4.Whether the claimant was entitled to notice pay, leave pay, house allowance claims, severance pay, refund of savings and compensation for unfair termination
Key legal issues
#Whether the claimant was an employee or an independent contractor
The court found the claimant was an employee of the respondent, having been paid a wage with statutory deductions, issued payment statements and allowed annual leave
Relying on section 2 of the Employment Act and the cited authorities, the court considered the mode of payment. The claimant earned a monthly wage of ksh.15,000 with PAYE, NSSF and NHIF deductions, received payment statements and was granted leave. These features are inconsistent with independent contracting, which involves invoicing, working one's own hours and absence of statutory deductions.
Duration of employment
Employment ran from January 2012, when the claimant became a full-time monthly-paid employee, to 1st February 2017
Both the claimant's testimony and the respondent's own statement of response established that the claimant worked on causal terms on the construction site until 2012, when he was retained and paid monthly. The court therefore treated January 2012 as the start of full-time employment, yielding 5 full years of service for the statutory computations.
Whether the termination was a lawful redundancy and what dues flow from it
The termination was a redundancy occasioned by reduced work; notice pay, accrued leave pay and severance pay were due, but compensation for unfair termination was not, as there was a valid reason
Reduced work and students' failure to pay fees justified the lay-off under section 40 of the Employment Act. The procedural lapse in issuing notice was cured by an award of one month's notice pay of ksh.15,000. Accrued leave of 21 days per year over 5 years was computed at ksh.60,576.90, and severance at 15 days per year for 5 full years at ksh.37,500. Compensation under section 49 was denied because the reason for termination was valid.
Claim for refund of salary savings of ksh.104,375
The claim for ksh.104,375 in unpaid savings was found justified, as the defence lacked any evidence
The claimant gave a detailed account of savings from 2011 to 2015, repayments, loans of ksh.80,000 and school fees paid, leaving a balance of ksh.104,375 after the cheque of ksh.19,500. The respondent asserted the sums were school fees for the claimant's children but filed no records and called no witness, so the defence failed.
Claims for housing allowance refund and house allowance
These claims were refused as the claimant was accommodated and his wage exceeded the minimum wage
The claimant was housed by the respondent, with rent of ksh.1,200 deducted, leaving an effective wage of ksh.13,800 which was still above the general worker minimum wage. Since the wage was already over and above the statutory minimum, allowing the house allowance claims would result in the employer's unjust enrichment. The claims were therefore dismissed.
Legal principles established
#- Payment of a wage subject to statutory deductions, issuance of payment statements and grant of annual leave indicate an employment relationship as opposed to an independent contractor relationship
- Where there is reduced work and the employer is forced to lay off its employees, redundancy is allowed under section 40 of the Employment Act, requiring notice or pay in lieu, payment of accrued leave and severance pay of at least 15 days' pay per year of service
- Failure by a respondent to call any evidence or file records leaves the claimant's case uncontroverted in any material way
Court orders
#- 1.Notice pay awarded at ksh.15,000
- 2.Leave pay ksh.60,576.90
- 3.Severance pay ksh.37,500
- 4.Owed savings of salary ksh.104,375
- 5.Costs of the suit to the claimant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and labour relations jurisdiction of the Employment and Labour Relations Court under Article 162(2) of the Constitution (employment cause filed as Cause No. 260 of 2017)
Relief refused
#Housing allowance refund of ksh.87,600 and house allowance claims of ksh.217,620
The claimant was accommodated by the respondent and his wage was over and above the minimum wage; allowing the claims would amount to unjust enrichment
Compensation for unfair termination of employment
There was a valid reason for the termination (redundancy due to reduced work), and the lapse in issuing notice was redressed with the award of notice pay
Costs
Costs of the suit awarded to the claimant
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly, judgement is hereby entered for the claimant in the following terms; a) Notice pay awarded at ksh.15,000; b) Leave pay ksh.60,576.90; c) Severance pay ksh.37,500; d) Owed savings of salary ksh.104,375; and e) Costs of the suit.
The court finds the claimant was the employee of the respondent.
Employment of the claimant is therefore from January, 2012 to 1 st February, 2017.
the respondent did not call any evidence. the claimant's case is not controverted in any material way.
As there was a valid reason leading to termination of employment, compensation is not due.
Issues in the judgment
#The savings figures in the claim as pleaded are internally inconsistent, listing multiple yearly totals and different final balances (ksh.477,000 total claim, ksh.478,000 total dues, and a final balance of ksh.104,375 after repayments)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Amos Otieno Kasimba v Board of Management Bahati Division Academy [2020] KEELRC 832 (KLR)", Case Analysis (2020). Cause No. 260 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/832/eng@2020-06-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.