Amos Otieno Kasimba v Board of Management Bahati Division Academy [2020] KEELRC 832 (KLR)

Relying on section 2 of the Employment Act and the cited authorities, the court considered the mode of payment. The claimant earned a monthly wage of ksh.15,000 with PAYE, NSSF and NHIF deductions, received payment statements and was granted leave. These features are inconsistent with independent contracting, which involves invoicing, working one's own hours and absence of statutory deductions.

Both the claimant's testimony and the respondent's own statement of response established that the claimant worked on causal terms on the construction site until 2012, when he was retained and paid monthly. The court therefore treated January 2012 as the start of full-time employment, yielding 5 full years of service for the statutory computations.

Reduced work and students' failure to pay fees justified the lay-off under section 40 of the Employment Act. The procedural lapse in issuing notice was cured by an award of one month's notice pay of ksh.15,000. Accrued leave of 21 days per year over 5 years was computed at ksh.60,576.90, and severance at 15 days per year for 5 full years at ksh.37,500. Compensation under section 49 was denied because the reason for termination was valid.

The claimant gave a detailed account of savings from 2011 to 2015, repayments, loans of ksh.80,000 and school fees paid, leaving a balance of ksh.104,375 after the cheque of ksh.19,500. The respondent asserted the sums were school fees for the claimant's children but filed no records and called no witness, so the defence failed.

The claimant was housed by the respondent, with rent of ksh.1,200 deducted, leaving an effective wage of ksh.13,800 which was still above the general worker minimum wage. Since the wage was already over and above the statutory minimum, allowing the house allowance claims would result in the employer's unjust enrichment. The claims were therefore dismissed.