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ELRCPartially AllowedCause No. 360 of 2017

Simeon Chepkwony v Golden Cara Investment [2020] KEELRC 879 (KLR)

Employment and Labour Relations Court of Kenya at Nakuru
12 June 2020
1,114 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The claimant, Simeon Chepkwony, sued Golden Cara Investment alleging he was employed from March 2014 to 2nd April 2017 as a mason/compressor machine operator earning Ksh.30,000 per month, and that his employment was verbally terminated by a supervisor without explanation or terminal dues. He sought 7 days unpaid wages, notice pay, annual leave pay for 3 years, leave travelling allowance, gratuity, underpayments, unpaid house allowance and compensation for unfair termination. The respondent denied that the claimant was its employee as alleged, asserting he was a casual employee not listed in the casuals register and never unlawfully terminated, but called no evidence at the hearing. The respondent did file a Casuals Wages Register listing the claimant as a casual mason, with attendance records showing erratic, staggered work of fewer than 26 days per month. The court, relying on the pleadings, the claimant's evidence and his submissions, held that the claimant was a casual employee. His bank statements showed payment of Ksh.26,178 net of a gross Ksh.30,000, exceeding the applicable Wage Order minimums for an artisan, so claims for underpayments, house allowance and annual leave failed as unjust enrichment. Gratuity and leave travelling allowance were held not due absent a contract of service or private treaty. Notice pay was not due for a casual employee paid a daily rate above the minimum wage. The only successful head was 7 days unpaid wages of Ksh.8,076.90, uncontested by any respondent witness. Judgment was entered for the claimant for that sum plus costs, delivered electronically under COVID-19 directions.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 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. 2.Whether the termination of the claimant's employment was unfair
  3. 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

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01

Whether the claimant was a casual employee

Holding

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

Reasoning

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.

p. 2
02

Entitlement to 7 days unpaid wages

Holding

Awarded at Ksh.8,076.90 since the respondent adduced no evidence to challenge the claim

Reasoning

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.

p. 3
03

Claims for gratuity and leave travelling allowance

Holding

Not due in law absent a contract of service or agreement providing for them

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.Judgment entered for the claimant against the respondent for payment of 7 days wages at Ksh.8,076.90
  2. 2.Claimant awarded costs of the suit

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Act (first-instance employment cause)

Relief refused

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Notice pay of Ksh.30,000

The claimant was found to be a casual employee paid a daily rate above the minimum wage

p. 3

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

p. 3

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

p. 3

Underpayments of Ksh.82,800

Bank deposits were Ksh.26,178 net of a gross Ksh.30,000, above the applicable minimum wage

p. 3

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

p. 2

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

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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.
p. 3Final orders
On the records filed and staggered days at work, the claimant was a causal employee.
p. 2Employment status
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.
p. 3Gratuity and leave travelling allowance
To seek for payment of house allowance whereas the respondent paid above the minimum wage is to seek unjust enrichment.
p. 3House allowance / unjust enrichment

Issues in the judgment

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minor

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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.