Nelson Booker Ogindo v Athinai Sisal Estate Limited [2020] KEELRC 1393 (KLR)
The bottom line
#A Kenyan court awarded a former farm worker only six years' leave pay, rejecting his unfair dismissal and gratuity claims for lack of proof.
What this practically means
#Executive summary
#Key legal issues
#Start date and status of employment
Employment formally commenced in 2011 on casual terms as admitted by the respondent, and monthly payment of wages through the Sacco meant the claimant was not a casual employee
The claimant's ID showed he was under 14 years in August 2007, attaining majority in January 2011. The respondent admitted employing him casually from May 2011, which the court adopted as the cut-off for formal engagement. The payment records showed monthly remittances rather than daily wages, inconsistent with casual employment.
Unfair termination
The claim of unfair termination failed because the alleged termination was effected by a person not authorised, and the claimant absconded without verifying the information
The claimant alleged that William Olila, a clerk, told him the manager had terminated his services. The manager denied this and denied Olila's authority. The work records showed an employee named William Olila Mus but the link with the claimant's alleged instruction was not established, and the claimant failed to verify with the manager before absenting himself.
Leave pay
Leave pay awarded only for the 6 years worked from May 2011 to September 2017, computed at Ksh.6,415.55 per year, totalling Ksh.38,495.30
The claim for 35 years' leave pay under the CBA was unjustified as the claimant was not unionised and only worked 6 years. The court computed leave pay in lieu of untaken leave based on the last due basic wage.
Gratuity under the CBA
Gratuity claim under the CBA failed as the claimant was not a union member and the alternative claim in lieu of unpaid statutory dues under sections 35(5) and (6) of the Employment Act was not pleaded
The claimant admitted he was not unionised. Benefits under the CBA were secured for members only. Although statutory dues were not paid and sections 35(5) and (6) were not complied with, the claimant did not plead a claim in lieu of service pay, so no gratuity could be awarded.
Legal principles established
#- A casual employee is one whose terms of engagement provide for payment at the end of each day and who is not engaged for longer than twenty-four hours at a time; an employee paid monthly is not a casual employee
- Where an employee is retained beyond a day-casual arrangement, the employee enjoys the rights under the Employment Act, 2007
- The employer has the duty to issue the employee with his terms and conditions of employment
Court orders
#- 1.Judgment entered for the claimant against the respondent for payment of leave pay due all at Ksh.38,495.30
- 2.Leave pay to be paid with interest from the date of filing suit until paid in full
- 3.Each party to bear own costs
- Jurisdiction invoked
- Article 162(2) of the Constitution establishing the Employment and Labour Relations Court (employment dispute under the Employment Act, 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nelson Booker Ogindo v Athinai Sisal Estate Limited [2020] KEELRC 1393 (KLR)", Case Analysis (2020). Cause No. 135 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1393/eng@2020-02-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.