Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause Number 1729 of 2011· [2014] KEELRC 598 (KLR)

Enoch Ngaira Lusala v Juzar A. Miyanji & another [2014] KEELRC 598 (KLR)

Industrial Court of Kenya
13 March 2014
3,286 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

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

#
The Claimant, employed in the Respondents' bakery business, claimed Kshs. 1,170,094 for unfair and unlawful verbal termination on 2nd July 2011, seeking notice pay, unpaid annual leave for 9 years, severance pay, overtime for weekdays and Sundays, and 12 months' compensation. The Respondents asserted he was a casual employee who was caught concealing cakes, confessed to theft before fellow employees, refused to write a formal apology, and deserted employment of his own volition. The Court found the Respondents' witnesses consistent and believable and was persuaded the Claimant concealed the cakes, confessing before other employees. It held that, irrespective of whether employment began in 2002 or 2005, cumulative years of work over a 6-day week made the Claimant a regular employee under Section 37 of the Employment Act, not a casual employee. However, severance pay failed for want of redundancy, service pay was barred by his N.S.S.F subscription, and notice and compensation claims failed because the Claimant left of his own volition after refusing to apologise in writing. Overtime was refused as unsupported and extortionist. The Court allowed only annual leave pay for 9 years, computed at Kshs. 81,270, and made no order on costs. Judgment delivered on 13th March 2014 by Rika J.

Key legal issues

#
01

Status of the employee: casual vs regular

Holding

The Claimant was a regular employee, not a casual employee, notwithstanding payment on a daily rate

Reasoning

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.

p. 4
02

Whether termination by the Respondents was unfair and unlawful

Holding

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

Reasoning

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.

p. 5
03

Annual leave pay

Holding

Annual leave pay allowed for 9 years at Kshs. 81,270, computed at the daily rate of Kshs. 430 for 21 days per year

Reasoning

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.

p. 5
04

Job classification

Holding

The dispute over job classification was immaterial; the Claimant was paid above the rate for the 'Cook' category he claimed

Reasoning

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.

p. 4

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. 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. 2.Granted the Claimant annual leave pay for the period worked at Kshs. 81,270
  3. 3.No order on the costs

Authorities

#

Legislation

  • Employment ActSection 44(4)(g)
  • Employment ActSection 40
  • Employment ActSection 45
  • Employment ActSection 35
  • Employment ActSection 37
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.