Kezia Ijai Lugaria v Joyce Kageha Wafula [2013] KEELRC 215 (KLR)
The bottom line
#A Kenyan court awarded a domestic worker severance and notice pay because her employer kept no payment records, but rejected claims she could not prove.
What this practically means
#Executive summary
#Key legal issues
#Entitlement to severance pay where the employee was not registered with NSSF and NHIF
Severance pay at 15 days' salary per year awarded for three years (2007-2009), the period covered by the Employment Act, 2007.
The Respondent admitted the Claimant was never registered with NSSF or NHIF and offered severance pay for 2007, 2008 and 2009, being the period covered by the Employment Act, 2007 which introduced compulsory severance pay. The court accepted the offer and quantified severance at 15 days' salary for each of the three years, awarding Kshs.25,515/=.
Payment in lieu of notice
One month's salary in lieu of notice awarded because the Respondent produced no evidence of having paid it.
Although the Respondent testified that the Claimant was paid one month's salary in lieu of notice upon termination, no documentary or other evidence of such payment was produced. The court therefore gave the Claimant the benefit of doubt and awarded Kshs.8,000/=, being the monthly salary inclusive of house allowance at termination.
Lawfulness of the termination and compensation claim
The termination was lawful; the twelve months' compensation claim was dismissed.
The court accepted the Respondent's evidence that the Claimant neglected her duties and without authority offered her services to neighbours during the Respondent's frequent travel abroad, persisting in the misconduct despite verbal warnings. The Respondent discharged the burden under Sections 43(1) and 47(5) of the Employment Act of proving a valid reason and its justification, so no compensation for unlawful termination was payable.
Claims for overtime, house allowance, leave travelling allowance, leave pay and underpayment
Dismissed for want of proof.
The Claimant bore the burden of proving these heads of claim. The Respondent denied overtime, holiday and Sunday work, asserted that the Claimant was accommodated in her house with food and medical care, and that annual leave was taken. The court found insufficient particulars and evidence to establish these claims and declined to award anything on them.
Legal principles established
#- An employer who fails to produce evidence of payment of salary in lieu of notice is deemed not to have made that payment, and the employee is granted the benefit of doubt.
- Under Sections 43(1) and 47(5) of the Employment Act, an employer must prove both the reason for termination and that the reason was justified in the circumstances.
- Where an employee is not registered with NSSF, compulsory severance pay under the Employment Act, 2007 applies for the period covered by that Act.
Court orders
#- 1.Kshs.25,515/= severance pay for three years
- 2.Kshs.8,000/= in lieu of one month's notice
- 3.Total award of Kshs.33,513/= as stated by the court
- 4.Interest on the amount at court rates from the date of termination to the date of payment
- 5.Costs of the suit to the Claimant
- Jurisdiction invoked
- Original jurisdiction over employment and labour relations disputes (Employment Act, 2007); not expressly stated in the judgment
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.
- George Kabue v Nokia Siemens Networks [2014] KEELRC 1421 (KLR)[2014] KEELRC 1421 (KLR)27 Nov 2014distinguished
Cite this brief
#Cite this brief
Caselaw, "Kezia Ijai Lugaria v Joyce Kageha Wafula [2013] KEELRC 215 (KLR)", Case Analysis (2013). Not stated in the judgment provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/215/eng@2013-08-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.