Nickson Aywa Amutsama v Sir Brook (K) Limited [2020] KEELRC 1678 (KLR)
The bottom line
#A Kenyan court awarded an employee unpaid leave pay but found he walked off the job, so claims for wrongful dismissal and notice pay failed.
What this practically means
#Executive summary
#Key legal issues
#Whether employment was wrongfully terminated
The claim of wrongful termination failed because the employer's work records showed the claimant attended and was paid for work from 1st to 7th February 2013, contradicting the alleged suspension, and he never returned after being sent home on 8th February 2013
The claimant gave inconsistent dates (July 2013 versus February 2013). The respondent filed work attendance records showing the claimant worked and was paid from 1st to 7th February 2013, unchallenged in any material way. The alleged suspension on 2nd February 2013 therefore had no foundation, and the claimant was found drunk on 8th February 2013 and never returned to work until demanding terminal dues in September 2013, amounting to walking away from employment.
Entitlement to annual leave for a casual employee converted under section 37
Annual leave pay was due for 2011 and 2012 as the claimant worked continuously without evidence of being allocated leave under section 28 of the Employment Act
The claimant was employed as a casual in November 2010 and confirmed in January 2011, remaining in continuous full-time employment until 7th February 2013. Save for attendance records, there was no evidence leave was allocated under section 28. Applying section 37 as explained in Rashid Mazuri Ramadhani v Doshi, the court awarded 21 days' leave pay per year at the higher daily wage rates, totalling ksh.15,002.
Underpayment claims
No underpayment was proved; where pleadings and testimony conflicted, the court adopted the wage in the claimant's own pleadings and found wages met or exceeded the wage order minimums
There were conflicting figures on the 2010 daily wage (ksh.379 in pleadings, ksh.315 in testimony, ksh.289 per the respondent's witness). The court took the claimant's own pleaded figure of ksh.379, which exceeded the 2010 minimum wage of ksh.339.40, and found the 2012 wage of ksh.379 equal to the minimum due, resulting in overpayment for 2010 and no underpayment overall.
Service gratuity and service pay
Both claims failed: gratuity requires an agreement, contract or private treaty (none existed) and service pay is excluded by section 35 of the Employment Act where NSSF and NHIF remittances were made
The court distinguished service pay from gratuity. Service pay is only due where there are no statutory dues deductions and remittances; the claimant was registered with NSSF and NHIF with all remittances made, so section 35 removed the claim. Gratuity is contractual or arises under a private treaty, and no such arrangement existed between the parties.
Legal principles established
#- A casual employee who works continuously for more than one month becomes entitled to the protections of section 37 of the Employment Act, including annual leave
- Service pay is not due where statutory dues have been remitted to NSSF and NHIF, per section 35 of the Employment Act
Court orders
#- 1.Award to the claimant of pay in lieu of annual leave of ksh.15,002 (ksh.7,043 for 2011 and ksh.7,959 for 2012)
- 2.Dismissal of all other claims (wrongful termination, notice pay, underpayments, service gratuity, service pay)
- 3.Each party to bear own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nickson Aywa Amutsama v Sir Brook (K) Limited [2020] KEELRC 1678 (KLR)", Case Analysis (2020). Cause No. 81 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1678/eng@2020-02-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.