Timothy Makau Muli v Meridian Patisserie Limited (Cause 1374 of 2011) (Civ) [2014] KEELRC 732 (KLR)

The court found the common evidence showed the Claimant was employed as a domestic servant by the Madhanys in 1997 and rendered labour in baking and selling samosas, biscuits and kebabs when Mrs Madhany extended her commercial activities to the residence. From 2007 to 2011 he worked in the commercially distinctive Meridian Patisserie. The court held that the corporate vehicles and the Madhanys were collectively the employer, and employees cannot be defeated by concealment of the true employer through layered commercial formations.

The court reasoned that the law required the employer to provide reasonable housing accommodation or pay house allowance in its absence, but a domestic servant living within the employer's residence already enjoys such accommodation. Having been housed in the Madhany residence throughout, even after 2007, the Claimant had no justification for a house allowance claim, which was dismissed in full.

The Claimant appeared registered with N.S.S.F. but the account did not show the Respondent deducted or remitted contributions on his behalf. Rather than order a refund of contributions never made, the court granted the alternative statutory remedy of service pay for the 14 years of service under Section 35 of the Employment Act, calculated at 15 days' salary per year.

The Respondent offered accrued leave pay for only 10 years at Kshs.68,649. The court held the correct approach was to adopt the full 14 years of service, yielding 294 days of annual leave. Applying the formula in the Respondent's own appendix RExh. 2 (326.9 x 294 days), the award came to Kshs.116,688.60, covering both annual leave pay and leave travelling allowance for the whole period.