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ELRCPartially AllowedCause 2007 of 2011· [2013] KEELRC 479 (KLR)

Harrison Meshack Lusimbo & another V Mareba Enterprises Limited [2013] KEELRC 479 (KLR)

Industrial Court of Kenya
16 January 2013
1,319 words in judgment
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The bottom line

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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

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Executive summary

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The Claimants, by memorandum of claim dated 18th July 2011, sought declarations that their dismissals by Mareba Enterprises Limited were arbitrary, unfair and unlawful, together with terminal dues and compensatory damages. The 1st Claimant's claim was withdrawn on 25th April 2012 and the case proceeded on the 2nd Claimant's claim of Kshs.520,800. The 2nd Claimant testified that he was employed as a casual in 1992, working Monday to Saturday from 8 a.m. to 4.30 p.m. making bricks and roofing tiles at a daily rate of Shs.400 paid weekly, and on 3rd February 2011 was told to go home after asking for his wages; he was never recalled, was not paid for his last week, and was never registered with NSSF. The Respondent's witnesses confirmed the employment history but suggested the Claimant left after a disagreement over loading rates; the accountant's evidence, based only on records covering June 2010 to February 2011, was treated with caution. The court framed two issues: the Claimant's legal employment status and his entitlement to the prayers. Applying the Employment Act definition of a casual employee, the court held that weekly pay meant he was not a casual; by section 37 he was converted to a monthly employee entitled to leave, notice and service pay. Termination without a section 41 fair hearing was unfair. The court awarded Shs.12,000 in lieu of notice, Shs.159,600 leave for 19 years, Shs.114,000 service pay at 15 days per year, and Shs.144,000 as 12 months' compensation for unfair termination - Shs.429,600 total - with costs.

Key legal issues

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01

Legal status of the Claimant's employment

Holding

The Claimant was not a casual employee but a monthly employee by operation of law under section 37 of the Employment Act

Reasoning

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.

p. 2
02

Whether the termination was unfair

Holding

The termination was unfair because the Claimant was not accorded a fair hearing under section 41 of the Employment Act

Reasoning

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.

p. 2
03

Entitlement to notice, leave, service pay and compensation

Holding

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

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 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. 2.Costs of the case to the Claimant

Authorities

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Legislation

  • Employment Actdefinition of casual employee
  • Employment ActSection 37
  • Employment ActSection 37(3)
  • Employment ActSection 41
  • Employment ActSection 49(1)(a)
  • Employment ActSection 28
  • Employment ActSection 35(5)
Jurisdiction invoked
Employment and labour relations jurisdiction of the Industrial Court of Kenya (employment dispute under the Employment Act 2007)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.