Eunice Endoveria Jamwaka v Trade House Africa Limited [2013] KEELRC 535 (KLR)
The bottom line
#A Kenyan court ruled the cleaner quit on her own, not unfairly dismissed, but her employer still owed her unpaid housing allowance and leave pay.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was terminated or deserted employment
The Claimant left employment of her own volition; there was no termination by the Respondent and termination was not unfair
The Respondent's cleaning contract with Yaya Centre was due to lapse and employees had been notified. The Claimant, believing the relationship was over, left on 30th December 2011 without waiting. The court found she made a conscious decision to move on, had a cavalier attitude, malingered to obtain off-duty days, and there was no evidence the Respondent instigated termination.
Entitlement to house rent allowance
Granted at 15% of Kshs. 8,500 for 16 months, totalling Kshs. 20,400
Section 31 of the Employment Act 2007 obliges the employer to secure reasonable housing accommodation or pay a reasonable house rent allowance. The pay slips had a blank house rent allowance column, showing no housing element was paid. The court awarded 15% of the monthly salary of Kshs. 8,500 for 16 months of service.
Entitlement to leave
Leave allowed for the one completed year and four months on pro-rata basis, Kshs. 9,153
The Respondent conceded the Claimant did not take leave, seeking only to offset it against its counterclaim, which failed. The court allowed leave for the completed year and four months on a pro-rata basis, computing 6,865 plus 2,288 to arrive at Kshs. 9,153.
Notice pay claims by both parties
Both the Claimant's claim and the Respondent's counterclaim for notice pay rejected
The Yaya contract was ending and the Respondent had notified all employees. Both parties understood there would be no work from January 2012. The court found it incoherent for the Respondent to expect notice pay from the Claimant after it had itself notified employees of the contract's end.
Legal principles established
#- An employer who fails to secure reasonable housing accommodation for an employee or pay a house rent allowance is liable under Section 31 of the Employment Act 2007, and pay slips that do not capture the housing element do not displace that liability.
- Where an employee leaves employment of her own volition, there is no termination by the employer and no compensation for unfair termination lies.
Court orders
#- 1.Declaration that termination was not unfair
- 2.The Respondent shall pay to the Claimant arrears of house rent allowance at Kshs. 20,400, and unused leave days at Kshs. 9,153, total Kshs. 29,553
- 3.The said amount be paid within 30 days of the delivery of the Award
- 4.No order on the costs
- Jurisdiction invoked
- Reference to the Industrial Court under the Employment Act 2007; dispute over unfair and unlawful termination
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Eunice Endoveria Jamwaka v Trade House Africa Limited [2013] KEELRC 535 (KLR)", Case Analysis (2013). Cause Number 494 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/535/eng@2013-07-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.