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ELRCPartially AllowedNot stated in the judgment· [2020] KEELRC 1047 (KLR)

Richard Sabwami Simiyu v Michael Maina Karinga & 2 others [2020] KEELRC 1047 (KLR)

Employment and Labour Relations Court
15 May 2020
5,078 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that unregistered residents' associations that hire workers are still employers and must pay fair terminal dues.

What this practically means

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Executive summary

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The Claimant, a night security guard at Akiba United Estate South C from 1st October 2007, sued three residents of the estate - Michael Karinga, Susan Mumbi Kihoro and Clive Akora - as treasurer, chairlady and secretary respectively of an informal association known as 29 Akiba United, alleging unfair termination on 28th October 2017 and non-payment of terminal dues of Kshs.2,110,652.50. The Respondents denied any employment relationship, asserting that residents individually procured the Claimant's services, that no association existed capable of employing him, and that they could not be sued on behalf of 29 residents. The court framed three issues: existence of an employment relationship, fairness of termination, and entitlement to reliefs. Applying Section 2 of the Employment Act and the tests in Everret Aviation, the court found an oral or implied contract of service with an informal association, holding that the employer bears responsibility for formalising the relationship and could not hide behind the association's unregistered status. The Claimant's uncontroverted evidence - that he fell ill, returned to find two new guards, and was never recalled or heard - amounted to unfair termination. The court awarded one month's salary in lieu of notice at the statutory minimum wage under the Regulation of Wages (General) Order 2017, 63 days' leave for 3 years, house allowance for 3 years, service pay for 10 years, and October 2017 salary, totalling Kshs.245,509.40, jointly and severally against the Respondents. Claims for off duty, public holidays and overtime failed for want of evidence. The 1st respondent was ordered to issue a certificate of service, and the Claimant was awarded costs.

Key legal issues

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01

Existence of an employment relationship with an unincorporated informal association

Holding

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.

Reasoning

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.

p. 6
02

Unfair termination

Holding

The termination was unfair as there was no valid reason and no opportunity to be heard.

Reasoning

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.

p. 6
03

Remedies for unfair termination and accrued entitlements

Holding

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.

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 1.Judgment entered for the claimant against the respondents jointly and severally in the sum of Kshs.245,509.40
  2. 2.The 1st respondent as Secretary of the Estate Association to issue a certificate of service to the claimant
  3. 3.The respondents shall pay the claimant's costs

Authorities

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Legislation

  • Employment ActSection 2
  • Employment ActSection 10(7)
  • Employment ActSection 26
  • Employment ActSection 28
  • Employment ActSection 35
  • Employment ActSection 35(5)
  • Employment ActSection 41
  • Employment ActSection 49(1)
  • Employment ActSection 51
  • Labour Institutions ActSection 48(1)
  • Evidence ActSections 107 and 108
  • Legal Notice No. 53 (Protective Security Services Order 2003)
  • Regulation of Wages (General) Order 2017
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (5)

  • Stanley Mungai Muchai v National Oil Corporation of Kenya
    [2010] eKLR
  • Everret Aviation Limited v Kenya Revenue Authority (through the Commissioner of domestic taxes)
    [2013] eKLR
  • Kipkebe Limited v Peterson Ondieki Tai
    [2016] eKLR
  • Mercantile Marine Service Association v Toms
    [1916] 2KB 243
  • Skair Associates Architects v Evangelical Lutheran Church of Kenya & 4 Others
    [2105] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and Labour Institutions Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.