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ELRCPartially AllowedNot stated in the judgment provided· [2013] KEELRC 215 (KLR)

Kezia Ijai Lugaria v Joyce Kageha Wafula [2013] KEELRC 215 (KLR)

Industrial Court of Kenya (now Employment and Labour Relations Court)
13 August 2013
1,225 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Claimant, employed as a domestic servant from December 2000 in Kakamega and later in Nairobi, claimed ten heads of terminal benefits including notice pay, three years' severance pay, leave travelling allowance, house allowance, overtime, off duty and public holiday pay, underpayment of basic salary, and twelve months' compensation for unlawful termination. Her employment was terminated in 2009, and a certificate of service confirmed seven years of service and a final monthly salary of Kshs.8,000/= inclusive of house allowance. The Respondent admitted the employment relationship but denied overtime, holiday work and leave pay, asserting the Claimant was accommodated in her house with food and medical care, took her annual leave, and was dismissed for neglecting duty and offering services to neighbours without authority during the Respondent's travels. The Respondent admitted non-registration with NSSF and NHIF and offered severance pay for 2007 to 2009, the period covered by the Employment Act, 2007. The court accepted the offer and awarded Kshs.25,515/= being 15 days' salary per year for three years. It awarded Kshs.8,000/= in lieu of one month's notice because the Respondent produced no evidence of payment despite asserting it. The claims for overtime, house allowance, leave travelling allowance, leave pay and underpayment failed for want of particulars and evidence. The twelve months' compensation claim was dismissed as the Respondent discharged the burden under Sections 43(1) and 47(5) of the Employment Act of proving and justifying the reason for termination. The court awarded interest at court rates from the date of termination until payment in full, together with costs of the suit.

Key legal issues

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01

Entitlement to severance pay where the employee was not registered with NSSF and NHIF

Holding

Severance pay at 15 days' salary per year awarded for three years (2007-2009), the period covered by the Employment Act, 2007.

Reasoning

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/=.

p. 3
02

Payment in lieu of notice

Holding

One month's salary in lieu of notice awarded because the Respondent produced no evidence of having paid it.

Reasoning

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.

p. 3
03

Lawfulness of the termination and compensation claim

Holding

The termination was lawful; the twelve months' compensation claim was dismissed.

Reasoning

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.

p. 3
04

Claims for overtime, house allowance, leave travelling allowance, leave pay and underpayment

Holding

Dismissed for want of proof.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.Kshs.25,515/= severance pay for three years
  2. 2.Kshs.8,000/= in lieu of one month's notice
  3. 3.Total award of Kshs.33,513/= as stated by the court
  4. 4.Interest on the amount at court rates from the date of termination to the date of payment
  5. 5.Costs of the suit to the Claimant

Authorities

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Legislation

  • Employment ActSection 43(1)
  • Employment ActSection 47(5)
  • Employment Act 2007severance pay provisions (noted as introducing compulsory severance pay)
Jurisdiction invoked
Original jurisdiction over employment and labour relations disputes (Employment Act, 2007); not expressly stated in the judgment

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.