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ELRCDismissedCause Number 1673 of 2012· [2014] KEELRC 736 (KLR)

M M v C K K [2014] KEELRC 736 (KLR)

Industrial Court at Nairobi
23 January 2014
JRJames Rika
785 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The Claimant alleged she was employed by the Respondent doctor as a house help from 2000 until July 2011, when her contract was terminated without reason or notice by the Respondent acting through his daughter. She sought service pay of Kshs. 22,000, annual leave entitlement of Kshs. 30,800, and compensation equivalent to 12 months' salary (Kshs. 48,000) for unfair termination, plus costs and interest. The Respondent denied a continuous full-time employment relationship, contending the Claimant worked for him only occasionally at a daily rate while serving other households, and urged dismissal with costs. The Respondent failed to attend the hearing of his case on 19th June 2013, whereupon the Court closed the proceedings and directed that the Award be delivered on notice. The Claimant testified that she earned Kshs. 4,000 monthly, and for the first time in testimony alleged the Respondent had sexually violated her and terminated her engagement after she ended a sexual relationship with him. The Court found, on the evidence and pleadings, that the Claimant was not a full-time domestic worker but a freelance one, working for the Respondent about three days a week and serving other families the rest of the week, making it inconsistent to claim employment benefits from the Respondent alone. The sexual allegations, absent from the pleadings, were held to point to a consensual liaison between adults and irrelevant to the remedies sought. The claim was dismissed with no order as to costs. Judgment was delivered at Nairobi on 23rd January 2014 by Rika J.

Key legal issues

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01

Existence of a full-time employment relationship

Holding

The Claimant was not a full-time domestic worker of the Respondent but a freelance worker serving multiple families; consequently, statutory benefits were not payable by the Respondent.

Reasoning

The Claimant admitted cleaning for a neighbour, J N, and stated in her Reply to the Statement of Reply that she worked for the Respondent three times a week and served other families the other four days. The Court found it inconsistent to claim service pay, leave pay and unfair termination compensation from the Respondent alone when she worked most of the week for others.

p. 2
02

Unpleaded allegations of sexual violation

Holding

Allegations of sexual violation raised for the first time in testimony, absent from the pleadings, were given no weight and had no bearing on the remedies sought.

Reasoning

The sexual allegations were not contained in the Statement of Claim or the Reply to the Statement of Reply. Raised in court, the evidence instead suggested a consensual relationship between adults, which the Court held was not an aspect of the employment relationship relevant to the remedies claimed.

p. 2

Legal principles established

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  • A claimant who works for multiple households on a freelance basis cannot claim employment benefits from one employer alone
  • Evidence of matters not pleaded cannot found relief

Court orders

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  1. 1.The Claim is dismissed with no order on the costs
Jurisdiction invoked
Dispute referred to the Industrial Court under its employment and labour relations jurisdiction; issue in dispute stated as unfair and unlawful termination

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "M M v C K K [2014] KEELRC 736 (KLR)", Case Analysis (2014). Cause Number 1673 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/736/eng@2014-01-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.