Enoch Ngaira Lusala v Juzar A. Miyanji & another [2014] KEELRC 598 (KLR)
The bottom line
#A Kenyan court confirmed long-serving 'casual' workers are regular employees entitled to leave pay, but denied compensation where the worker simply walked away from the job.
What this practically means
#Executive summary
#Key legal issues
#Status of the employee: casual vs regular
The Claimant was a regular employee, not a casual employee, notwithstanding payment on a daily rate
The Court found that whether employment began in 2002 or 2005, the cumulative years worked over a 6-day week were conclusive of regular employment. Section 37 of the Employment Act makes such an employee a regular employee entitled to full benefits including minimum annual leave. The casual label and casual cards could not displace the substance of the relationship.
Whether termination by the Respondents was unfair and unlawful
No termination by the Respondents was established; the Claimant left employment of his own volition after refusing to put his confession and apology in writing
The Court believed the evidence of Gona and Juzar that cakes were found concealed in a bucket and the Claimant confessed before other employees. He sought forgiveness but refused to commit the apology to paper and then deserted work. The employer forgave him and required only a written apology; the employee was unreasonable and made the choice to end the contract. Compensation and notice pay were therefore unavailable.
Annual leave pay
Annual leave pay allowed for 9 years at Kshs. 81,270, computed at the daily rate of Kshs. 430 for 21 days per year
Having found the Claimant was a regular employee under Section 37, he was entitled to a minimum of 21 days annual leave per year. The Respondents never granted leave, believing him to be a casual employee. The Court adopted the 9-year period proposed by the Claimant and computed the award on the Petty Cash Voucher rate.
Job classification
The dispute over job classification was immaterial; the Claimant was paid above the rate for the 'Cook' category he claimed
The Court found that in small enterprises employees are assigned multiple roles and that the Claimant was a 'Jack of all the trades.' He was paid Kshs. 430 daily, above the Kshs. 364 rate for a Cook, so no prejudice arose from any misclassification.
Legal principles established
#- Cumulative years of work over 6 days a week are conclusive evidence that an employee is a regular employee, not a casual employee, under Section 37 of the Employment Act
- An employee who has been subscribed to the N.S.S.F is not entitled to service pay, to avoid double social security payments
- The ambiguity of an employment date is resolved against an employer who failed to issue a clear written contract of employment disclosing the date of employment
Court orders
#- 1.Declared that the Claimant left employment of his own volition and is not entitled to Notice Pay, Compensation, Severance Pay and Overtime Pay
- 2.Granted the Claimant annual leave pay for the period worked at Kshs. 81,270
- 3.No order on the costs
- Jurisdiction invoked
- Jurisdiction over a dispute in employment referred under the Industrial Court's dispute-resolution mandate (Issue in Dispute: Unfair and Unlawful Termination); no specific constitutional/statutory provision cited.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Enoch Ngaira Lusala v Juzar A. Miyanji & another [2014] KEELRC 598 (KLR)", Case Analysis (2014). Cause Number 1729 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/598/eng@2014-03-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.