Simeon Chepkwony v Golden Cara Investment [2020] KEELRC 879 (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 a casual employee of the respondent as alleged and pleaded by the respondent, or a monthly employee earning Ksh.30,000
- 2.Whether the termination of the claimant's employment was unfair
- 3.Whether the claimant is entitled to notice pay, annual leave pay, leave travelling allowance, gratuity, house allowance, underpayments and 7 days unpaid wages
Key legal issues
#Whether the claimant was a casual employee
The court found the claimant was a casual employee based on the respondent's casuals register and the erratic, staggered pattern of days worked each month
The respondent filed a casuals wages register listing the claimant as a casual mason. Although the year was not stated, the attendance records showed the claimant worked fewer than 26 days per month, similar to other masons, with erratic and staggered attendance. In the absence of the respondent's evidence to the contrary or rebuttal, the court accepted the claimant was a casual employee.
Entitlement to 7 days unpaid wages
Awarded at Ksh.8,076.90 since the respondent adduced no evidence to challenge the claim
The claim for 7 days unpaid wages was premised on a monthly wage of Ksh.30,000. With no witness called by the respondent to challenge these claims, the court held the claimant entitled to Ksh.8,076.90 for his labours.
Claims for gratuity and leave travelling allowance
Not due in law absent a contract of service or agreement providing for them
The court held that gratuity and leave travelling allowance depend on an employment contract with agreed terms or a private treaty allowing such benefits. As no contract of service existed, the claims failed. This reasoning also informed rejection of house allowance and notice pay claims given wages above the minimum.
Legal principles established
#- Gratuity and leave travelling allowance are only payable where an employment contract or agreement provides for such benefits
- Where an employee is paid above the minimum wage, claims for house allowance amount to unjust enrichment
Court orders
#- 1.Judgment entered for the claimant against the respondent for payment of 7 days wages at Ksh.8,076.90
- 2.Claimant awarded costs of the suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Act (first-instance employment cause)
Relief refused
#Notice pay of Ksh.30,000
The claimant was found to be a casual employee paid a daily rate above the minimum wage
Annual leave pay of Ksh.90,000 and house allowance of Ksh.266,000
The wage of Ksh.30,000 was fair and reasonable compensation above the minimum wage; seeking more would be unjust enrichment
Leave travelling allowance of Ksh.6,000 and gratuity of Ksh.48,461.50
Such benefits require an employment contract or private treaty providing for them; there was no contract of service
Underpayments of Ksh.82,800
Bank deposits were Ksh.26,178 net of a gross Ksh.30,000, above the applicable minimum wage
Compensation of Ksh.360,000 for unfair termination
No relief for unfair termination was granted; the court found the claimant was a casual employee with erratic, staggered attendance
Costs
Save for the payment for days worked, the claimant is entitled to his costs of the suit; judgment entered for the claimant for 7 days wages at Ksh.8,076.90 and costs of the suit
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 against the respondent for the payment of 7 days wages at ksh.8, 076.90 and costs of the suit.
On the records filed and staggered days at work, the claimant was a causal employee.
The claims of payment of gratuity and leave travelling allowance are only due in a case where the employee has an employment contract with agreed upon terms and conditions of service giving such benefits and or there is a private treaty or agreement allowing for the payment of such benefits.
To seek for payment of house allowance whereas the respondent paid above the minimum wage is to seek unjust enrichment.
Issues in the judgment
#The judgment repeatedly misspells 'casual' as 'causal' and refers to the claimant's employer counterpart inconsistently; wage figure for July 2016 reduction is printed as 'ksh.28, and 800'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Simeon Chepkwony v Golden Cara Investment [2020] KEELRC 879 (KLR)", Case Analysis (2020). Cause No. 360 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/879/eng@2020-06-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.