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ELRCPartially AllowedCause No. 135 of 2018

Nelson Booker Ogindo v Athinai Sisal Estate Limited [2020] KEELRC 1393 (KLR)

Employment and Labour Relations Court of Kenya
20 February 2020
1,647 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court awarded a former farm worker only six years' leave pay, rejecting his unfair dismissal and gratuity claims for lack of proof.

What this practically means

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Executive summary

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The claimant sued the respondent sisal estate claiming notice pay of Ksh.40,032, leave pay of Ksh.1,245,444 for 35 years, gratuity of Ksh.84,512 for 10 years, and compensation for unfair termination, alleging he was employed in August 2007 and summarily dismissed on 9th September 2017 by the estate manager without notice, reasons or terminal dues. The respondent denied the claims, asserting the claimant was a casual labourer engaged on a needs basis and paid daily, and that operations were suspended due to a shortage of sisal with an expectation of recall. The court found from the claimant's identity card that he was under 14 years in 2007, attained majority in January 2011, and adopted the respondent's admission of casual engagement from May 2011 as the start of formal employment. Monthly wage payments through the Sacco meant the claimant was not a casual employee. However, the unfair termination claim failed: the alleged termination was communicated by a clerk, William Olila, without authority, and the claimant absconded without verifying the instruction with the manager. Leave pay was awarded only for the 6 years actually worked, at Ksh.38,495.30 with interest from filing suit. The gratuity claim failed because the claimant was not unionised under the CBA and the alternative claim in lieu of unpaid statutory dues under sections 35(5) and (6) of the Employment Act was not pleaded. Each party was ordered to bear its own costs.

Questions the Court framed

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

  1. 1.When the claimant's employment with the respondent commenced, given his underage employment and the respondent's records
  2. 2.Whether the claimant was a casual employee or a regular employee entitled to statutory benefits
  3. 3.Whether the claimant's employment was unfairly terminated on 9th September 2017
  4. 4.Whether the claimant was entitled to leave pay under the CBA and for how many years
  5. 5.Whether the claimant was entitled to gratuity under the CBA despite not being unionised

Key legal issues

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01

Start date and status of employment

Holding

Employment formally commenced in 2011 on casual terms as admitted by the respondent, and monthly payment of wages through the Sacco meant the claimant was not a casual employee

Reasoning

The claimant's ID showed he was under 14 years in August 2007, attaining majority in January 2011. The respondent admitted employing him casually from May 2011, which the court adopted as the cut-off for formal engagement. The payment records showed monthly remittances rather than daily wages, inconsistent with casual employment.

p. 2
02

Unfair termination

Holding

The claim of unfair termination failed because the alleged termination was effected by a person not authorised, and the claimant absconded without verifying the information

Reasoning

The claimant alleged that William Olila, a clerk, told him the manager had terminated his services. The manager denied this and denied Olila's authority. The work records showed an employee named William Olila Mus but the link with the claimant's alleged instruction was not established, and the claimant failed to verify with the manager before absenting himself.

p. 3
03

Leave pay

Holding

Leave pay awarded only for the 6 years worked from May 2011 to September 2017, computed at Ksh.6,415.55 per year, totalling Ksh.38,495.30

Reasoning

The claim for 35 years' leave pay under the CBA was unjustified as the claimant was not unionised and only worked 6 years. The court computed leave pay in lieu of untaken leave based on the last due basic wage.

p. 3
04

Gratuity under the CBA

Holding

Gratuity claim under the CBA failed as the claimant was not a union member and the alternative claim in lieu of unpaid statutory dues under sections 35(5) and (6) of the Employment Act was not pleaded

Reasoning

The claimant admitted he was not unionised. Benefits under the CBA were secured for members only. Although statutory dues were not paid and sections 35(5) and (6) were not complied with, the claimant did not plead a claim in lieu of service pay, so no gratuity could be awarded.

p. 3

Legal principles established

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  • A casual employee is one whose terms of engagement provide for payment at the end of each day and who is not engaged for longer than twenty-four hours at a time; an employee paid monthly is not a casual employee
  • Where an employee is retained beyond a day-casual arrangement, the employee enjoys the rights under the Employment Act, 2007
  • The employer has the duty to issue the employee with his terms and conditions of employment

Court orders

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  1. 1.Judgment entered for the claimant against the respondent for payment of leave pay due all at Ksh.38,495.30
  2. 2.Leave pay to be paid with interest from the date of filing suit until paid in full
  3. 3.Each party to bear own costs

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Article 162(2) of the Constitution establishing the Employment and Labour Relations Court (employment dispute under the Employment Act, 2007)

Relief refused

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3 months' notice pay of Ksh.40,032

Not awarded as the claim of unfair termination failed; no foundation was established for the alleged termination

p. 3

Compensation for unfair termination of employment

The claimant absconded duty after being told not to report to work by a person not authorised to terminate employment

p. 3

Leave pay for 35 years of Ksh.1,245,444

The claimant only worked for 6 years from May 2011 and was not unionised under the CBA

p. 3

Gratuity pay for 10 years of Ksh.84,512

The claimant was not unionised to claim under the CBA and the claim in lieu of non-remittance of statutory dues was not pleaded

p. 3

Costs

Each party shall bear own costs

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.

“casual employee” means a person the terms of whose engagement provide for his payment at the end of each day and who is not engaged for a longer period than twenty-four hours at a time;
p. 2Definition of casual employee
the claimant was receiving monthly payments by the respondent meaning there was no daily payment of his wages for work done for the days worked. This does not define him as a casual employee;
p. 2Monthly wages inconsistent with casual employment
In this case, the claimant failed to attend work after the 9 th of September, 2017 after a stranger and or a person not authorised directed him not to report to work. Without verifying such information, the claimant proceeded and absconded duty.
p. 3Failure of unfair termination claim
Accordingly, judgement is hereby entered for the claimant for the respondent for the payment of leave pay due all at ksh.38, 495.30 to be paid with interest from the date of filing suit until paid in full. Each party shall bear own costs.
p. 3Final orders

Issues in the judgment

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material

Internal inconsistency in the claimant's asserted employment duration: the claim pleads 10 years' service from 2007, yet the claim for leave pay refers to 35 years and the claimant's testimony places his birth in 1993, making employment from 2007 impossible as he was under 14

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, "Nelson Booker Ogindo v Athinai Sisal Estate Limited [2020] KEELRC 1393 (KLR)", Case Analysis (2020). Cause No. 135 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1393/eng@2020-02-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.