Gervasio Muriira & 8 others v Mutethia Farmers Co-Operative Society Limited [2014] KEELRC 1492 (KLR)

The court examined the definition of a casual employee under section 2 of the Employment Act, 2007 and found the claimants were paid monthly, not daily; the respondent's own evidence was that payment was monthly; advances could be given; and unpaid leave was inconsistent with casual engagement. All four indicators pointed away from casual status.

Salary advances were inconsistent with the respondent's admitted failure to pay salaries for months (least admitted being 5.5 months). No disciplinary proceedings were held against the claimants. The minutes relied on were of a meeting held on 12.07.2014, after the claimants had left employment and after the suit was filed on 20.05.2014, making them an afterthought without due process.

The respondent admitted owing salaries but failed by evidence to establish the period or amounts it had paid. The muster roll filed showed clear discrepancies (e.g. February 2013 showing 31 days worked when the month had 28) and the primary check-in and out register was not filed, so the claimants' claim of 15 months' unpaid salary was accepted on a balance of probability.

The claimants were not provided housing accommodation and were not paid the 15% house allowance provided for in the wage orders. The casual-worker defence failed since none was a casual worker. There was no evidence that due annual leave was granted, so payment in lieu of leave was awarded as prayed.

Although the respondent was willing to reinstate and the claimants were entitled to reinstatement, the court considered the respondent's operations based on crop production and fluctuating market prices and held that an order for reengagement would meet the ends of justice more proportionately.