Harrison Meshack Lusimbo & another V Mareba Enterprises Limited [2013] KEELRC 479 (KLR)
The bottom line
#A Kenyan worker paid weekly for 19 years won Kshs.429,600 because the court ruled he was never truly a casual employee.
What this practically means
#Executive summary
#Key legal issues
#Legal status of the Claimant's employment
The Claimant was not a casual employee but a monthly employee by operation of law under section 37 of the Employment Act
A casual employee is defined in the Employment Act as one paid at the end of each day and not engaged for more than 24 hours at a time. The Claimant was paid weekly, at a daily rate of Shs.400, and worked continuously Monday to Saturday from 8 a.m. to 4.30 p.m. for 19 years. Having worked continuously for over a month, section 37 converted him to monthly terms with entitlements to leave, notice and service pay.
Whether the termination was unfair
The termination was unfair because the Claimant was not accorded a fair hearing under section 41 of the Employment Act
Having worked continuously for 19 years and having been converted to a monthly employee, the Claimant was entitled to a fair hearing in accordance with section 41 before termination. He was simply told to go home without any hearing or disciplinary process, so the termination was unfair and attracted compensation of up to 12 months' salary under section 49.
Entitlement to notice, leave, service pay and compensation
The Claimant was awarded one month's salary in lieu of notice, 21 days' leave for 19 years, service pay at 15 days per year worked, and 12 months' compensation
As a converted monthly employee, the Claimant fell within sections 28, 35(5) and 49(1)(a) of the Employment Act. He was awarded Shs.12,000 notice, Shs.159,600 leave computed at 21 days for each of 19 years, Shs.114,000 service pay at the 15-day rate adopted for redundancy, and the maximum 12 months' compensation given his 19 years of service under casual terms.
Legal principles established
#- An employee paid at the end of each week is not a casual employee within the meaning of the Employment Act
- Under section 37 of the Employment Act, a casual employee working continuously for one month is converted by operation of law to a monthly contract and entitled to the full statutory terms
- Termination without a fair hearing under section 41 of the Employment Act is unfair
Court orders
#- 1.Judgment for the 2nd Claimant Gilfrine Noah Masio in the sum of Shs.429,600, comprising Shs.12,000 notice pay, Shs.159,600 annual leave, Shs.114,000 service pay and Shs.144,000 compensation for unfair termination
- 2.Costs of the case to the Claimant
- Jurisdiction invoked
- Employment and labour relations jurisdiction of the Industrial Court of Kenya (employment dispute under the Employment Act 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (4)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Haroon v Kashali (Appeal E006 of 2023) [2023] KEELRC 3451 (KLR)[2023] KEELRC 3451 (KLR)23 Nov 2023
- Edward Waka Osare v Inter Security Limited [2022] KEELRC 564 (KLR)[2022] KEELRC 564 (KLR)10 Mar 2022
- Onesmus Munyalo v Tinnette Enterprises Limited [2015] KEELRC 696 (KLR)[2015] KEELRC 696 (KLR)20 Jul 2015
- Evans Muhambe Orenze v Joseph Kirimi & Irene Kirimi[2013] KEHC 2731 (KLR)5 Jun 2013followed
Cite this brief
#Cite this brief
Caselaw, "Harrison Meshack Lusimbo & another V Mareba Enterprises Limited [2013] KEELRC 479 (KLR)", Case Analysis (2013). Cause 2007 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/479/eng@2013-01-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.