Martin Shumwe Okwaro v Purushottam Enterprises Ltd [2017] meKLR [2017] KEELRC 1756 (KLR)
The bottom line
#A Kenyan worker paid weekly was legally a regular employee, so his employer's unceremonious 'no work' dismissal was an unlawful redundancy costing the company over Kshs 89,000.
What this practically means
#Executive summary
#Key legal issues
#Status of the claimant's employment
The claimant was a regular employee, not casual, having worked an aggregate period exceeding one month
Although the respondent asserted the employment was intermittent and casual with weekly wages, the court found the claimant worked continuously at various sites from June 2011 until January 2014. By operation of section 37 of the Employment Act, service exceeding one month in aggregate converts a casual employee into a regular employee, attracting all protections applicable to regular employees.
Lawfulness of the termination
The termination was an unlawful declaration of redundancy for non-compliance with section 40 of the Employment Act
The respondent admitted services were terminated for lack of work, which amounts to redundancy. Section 40 prescribes the procedure and entitlements for redundancy, including compensation. The respondent adduced no evidence that it compensated the claimant as required by law, rendering the redundancy unlawful and unfair, warranting both redundancy dues and compensation.
Legal principles established
#- An employee who has worked for an aggregate period exceeding one month becomes a regular employee by virtue of section 37 of the Employment Act
- A redundancy declaration without payment of compensation as provided by law under section 40 of the Employment Act is unlawful
Court orders
#- 1.Judgment entered against the respondent for one month's salary in lieu of notice (Kshs 8,760)
- 2.Severance pay at the rate of 15 days' pay for each completed year of service (Kshs 10,950)
- 3.Eight months' salary as compensation for unfair termination of services (Kshs 70,080)
- 4.Costs of the suit to the claimant
- 5.Claims for underpayment, leave and house allowance disallowed
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over a claim for terminal dues and compensation for unfair termination under the Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Martin Shumwe Okwaro v Purushottam Enterprises Ltd [2017] meKLR [2017] KEELRC 1756 (KLR)", Case Analysis (2017). Cause Number 766 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1756/eng@2017-02-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.