Tuimising v Lule (Cause 1688 of 2017) [2023] KEELRC 663 (KLR)

Section 2 of the Employment Act defines a casual employee as one paid at the end of each day and not engaged for more than 24 hours at a time. The claimant served continuously as a night watchman from June 2014 to July 2017. Under Sections 10(7) and 74 of the Employment Act, the employer bore the burden of proving casual status but kept no employment records; in the absence of such evidence the court inferred a continuous term engagement.

Section 44(4)(b) of the Employment Act lists intoxication rendering an employee incapable of performing work as gross misconduct justifying summary dismissal. Four respondent witnesses consistently testified the claimant reported to work drunk and failed to open the gate on the material night; intoxication impaired vigilance required of a night watchman and posed a risk to the employer and his property.

Section 41(1) requires a hearing before termination. The termination occurred in a domestic set-up where written notice and minutes are impracticable. RW4 corroborated the respondent's testimony that the claimant was confronted and engaged over the alleged transgressions before dismissal, satisfying the court that fair procedure was followed in substance.

Legal Notice No. 116 of 2015 prescribed a minimum wage of Kshs 12,221.10 for a night watchman in Nairobi from 1st May 2015, exclusive of house allowance. The claimant earned Kshs 11,000/11,346, confirming underpayment. Section 31(1) of the Employment Act obliges the employer to provide housing or pay a sufficient rent sum; the Court of Appeal endorses 15% of salary as the reasonable rate.

The respondent claimed he paid the claimant Kshs 5,000 for July days worked and that the claimant signed a book acknowledging payment, but did not produce that book in evidence. As the burden lay on the employer to prove payment, the court found the claimant entitled to the salary for the 12 days worked.