Richard Sabwami Simiyu v Michael Maina Karinga & 2 others [2020] KEELRC 1047 (KLR)
The bottom line
#A Kenyan court ruled that unregistered residents' associations that hire workers are still employers and must pay fair terminal dues.
What this practically means
#Executive summary
#Key legal issues
#Existence of an employment relationship with an unincorporated informal association
There was an informal association known as Akiba 29 Estate South C which had engaged the claimant as a night guard, creating an employment relationship with the respondents.
The court applied the statutory definitions in Section 2 of the Employment Act and the multi-factorial tests from Everret Aviation. The respondents did not deny that the claimant worked and was paid. The M-pesa statements showed deposits from the 1st respondent; the claimant dealt directly with the three respondents who supervised him. The employer cannot rely on its failure to formalise or register the association to defeat the claim; it should have joined all residents if unhappy with being named.
Unfair termination
The termination was unfair as there was no valid reason and no opportunity to be heard.
The claimant's uncontroverted evidence was that he fell ill, informed the 1st respondent, and on returning to work found two new guards engaged. The 2nd respondent confirmed she promised to raise the matter at a residents' meeting but never called him back. There was no notice, no hearing, and no valid reason established, contrary to the requirements of fair procedure before termination.
Remedies for unfair termination and accrued entitlements
The claimant was awarded one month's pay in lieu of notice at the statutory minimum wage, leave for 3 years, house allowance for 3 years, service pay for 10 years, and salary for October 2017, totalling Kshs.245,509.40.
Entitlement to notice pay arose under Sections 35 and 49(1) of the Employment Act. The court applied the Regulation of Wages (General) Order 2017 minimum wage for night watchmen plus 15% house allowance, guided by Section 26 of the Employment Act and Section 48(1) of the Labour Institutions Act. Leave was limited to the 3-year limitation period for Employment Act claims; service pay was awarded under Section 35(5) as the claimant was not an NSSF member.
Legal principles established
#- A contract of service need not be in writing and may be implied from the conduct of the parties; where an informal association engages a worker through persons the worker deals with directly, an employment relationship exists with those persons unless they join the other members.
- It is the role of the employer to formalise the employment relationship; the persons who supervised and paid the employee cannot escape liability by relying on the informality of the association.
- Termination without a valid reason and without an opportunity to be heard is unfair.
- Statutory minimum wages and conditions under a wages order apply to contracts of service and cannot be varied downwards by agreement.
Court orders
#- 1.Judgment entered for the claimant against the respondents jointly and severally in the sum of Kshs.245,509.40
- 2.The 1st respondent as Secretary of the Estate Association to issue a certificate of service to the claimant
- 3.The respondents shall pay the claimant's costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act and Labour Institutions Act
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ihururu Housing Investment Co-operative Society Ltd v Wangari (Employment and Labour Relations Appeal E014 of 2024) [2025] KEELRC 1453 (KLR)[2025] KEELRC 1453 (KLR)15 May 2025
Cite this brief
#Cite this brief
Caselaw, "Richard Sabwami Simiyu v Michael Maina Karinga & 2 others [2020] KEELRC 1047 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1047/eng@2020-05-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.