Othoo v Wilham Kenya Limited (Cause 260 of 2009) [2012] KEIC 21 (KLR)
The bottom line
#A Kenyan court ruled that casual employees cannot claim redundancy pay and must prove unpaid wages, while employers must produce records to defend claims.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant was a casual employee
The claimant was a casual employee under Section 2 of the Employment Act, 2007, as evidenced by the attendance summary and the Casual Employees' Paysheet which he did not challenge.
Applying the statutory definition of a casual employee as one paid at the end of each day and not engaged for longer than twenty-four hours at a time, the court found the evidence from both parties fitted the claimant as a casual employee. His attendance summary showed non-continuous attendance, corroborating the respondent's paysheet which he was deemed to have admitted by not challenging its authenticity.
Whether redundancy can be declared in respect of casual employees
No redundancy could be declared on the claimant; as a casual employee he was entitled only to one day's termination notice and pay under Section 35(1), not the redundancy benefits under Section 40(1)(f).
Following the court's earlier decision in Consolata Wanjiku Ndirangu v Wilham (K) Ltd, the court held that because a casual employee is engaged for not more than twenty-four hours at a time, Parliament could not have intended casual and permanent employees to be dealt with similarly on termination, having classified and defined them separately in the Employment Act.
Whether the claimant is entitled to the terminal benefits prayed for
The claimant was awarded notice pay of Kshs.300, salary arrears and unprocessed claims totalling Kshs.8,400, and leave pay of Kshs.11,025; no award for overtime, loss of employment or intimidation for lack of evidence.
The respondent admitted notice pay and leave pay (already deposited with the District Labour Office). For salary arrears, the burden of proving payment was placed on the respondent as custodian of records; RW1 did not complete her evidence after seeking an adjournment to avail documents, so 28 days were awarded. Overtime, loss of employment and intimidation failed for lack of evidence.
Legal principles established
#- A casual employee, engaged for not more than twenty-four hours at a time, is only entitled to one day's termination notice and pay under Section 35(1) of the Employment Act, and not the redundancy benefits under Section 40(1)(f).
- Where the employer is the custodian of payment records and fails to prove payment, the burden of proving that salary was paid falls on the employer.
Court orders
#- 1.Notice pay of Kshs. 300.00
- 2.Salary arrears of Kshs. 8,400.00 (28 days x Kshs.300)
- 3.Leave pay of Kshs. 11,025.00
- 4.Total award of Kshs. 19,725.00
- 5.Respondent to pay the claimant's costs plus interest
- 6.Dues already deposited with the District Labour Office may be used to pay part of the sum awarded
- Jurisdiction invoked
- Industrial Court jurisdiction over employment and labour disputes (Labour Institutions Act); claim filed as Cause 260 of 2009
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.
- John Karanja Muchoki v Paul Njuguna Muchoki [2015] KEELC 745 (KLR)[2015] KEELC 745 (KLR)9 Mar 2015followed
Cite this brief
#Cite this brief
Caselaw, "Othoo v Wilham Kenya Limited (Cause 260 of 2009) [2012] KEIC 21 (KLR)", Case Analysis (2012). Cause 260 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keic/2012/21/eng@2012-09-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.