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ELRCPartially AllowedCause No. 360 of 2017· [2020] KEELRC 879 (KLR)

Simeon Chepkwony v Golden Cara Investment [2020] KEELRC 879 (KLR)

Employment and Labour Relations Court of Kenya at Nakuru
12 June 2020
MMM. Mbaru
1,114 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The claimant, Simeon Chepkwony, sued Golden Cara Investment alleging he was employed from March 2014 to 2nd April 2017 as a mason/compressor machine operator earning Ksh.30,000 per month, and that his employment was verbally terminated by a supervisor without explanation or terminal dues. He sought 7 days unpaid wages, notice pay, annual leave pay for 3 years, leave travelling allowance, gratuity, underpayments, unpaid house allowance and compensation for unfair termination. The respondent denied that the claimant was its employee as alleged, asserting he was a casual employee not listed in the casuals register and never unlawfully terminated, but called no evidence at the hearing. The respondent did file a Casuals Wages Register listing the claimant as a casual mason, with attendance records showing erratic, staggered work of fewer than 26 days per month. The court, relying on the pleadings, the claimant's evidence and his submissions, held that the claimant was a casual employee. His bank statements showed payment of Ksh.26,178 net of a gross Ksh.30,000, exceeding the applicable Wage Order minimums for an artisan, so claims for underpayments, house allowance and annual leave failed as unjust enrichment. Gratuity and leave travelling allowance were held not due absent a contract of service or private treaty. Notice pay was not due for a casual employee paid a daily rate above the minimum wage. The only successful head was 7 days unpaid wages of Ksh.8,076.90, uncontested by any respondent witness. Judgment was entered for the claimant for that sum plus costs, delivered electronically under COVID-19 directions.

Key legal issues

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01

Whether the claimant was a casual employee

Holding

The court found the claimant was a casual employee based on the respondent's casuals register and the erratic, staggered pattern of days worked each month

Reasoning

The respondent filed a casuals wages register listing the claimant as a casual mason. Although the year was not stated, the attendance records showed the claimant worked fewer than 26 days per month, similar to other masons, with erratic and staggered attendance. In the absence of the respondent's evidence to the contrary or rebuttal, the court accepted the claimant was a casual employee.

p. 2
02

Entitlement to 7 days unpaid wages

Holding

Awarded at Ksh.8,076.90 since the respondent adduced no evidence to challenge the claim

Reasoning

The claim for 7 days unpaid wages was premised on a monthly wage of Ksh.30,000. With no witness called by the respondent to challenge these claims, the court held the claimant entitled to Ksh.8,076.90 for his labours.

p. 3
03

Claims for gratuity and leave travelling allowance

Holding

Not due in law absent a contract of service or agreement providing for them

Reasoning

The court held that gratuity and leave travelling allowance depend on an employment contract with agreed terms or a private treaty allowing such benefits. As no contract of service existed, the claims failed. This reasoning also informed rejection of house allowance and notice pay claims given wages above the minimum.

p. 3

Legal principles established

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  • Gratuity and leave travelling allowance are only payable where an employment contract or agreement provides for such benefits
  • Where an employee is paid above the minimum wage, claims for house allowance amount to unjust enrichment

Court orders

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  1. 1.Judgment entered for the claimant against the respondent for payment of 7 days wages at Ksh.8,076.90
  2. 2.Claimant awarded costs of the suit
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Act (first-instance employment cause)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Simeon Chepkwony v Golden Cara Investment [2020] KEELRC 879 (KLR)", Case Analysis (2020). Cause No. 360 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/879/eng@2020-06-12

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.