Mary Mumbi Kariuki v Director,Pamoja Women Development Programme [2015] KEELRC 326 (KLR)
The bottom line
#A Kenyan court ruled an employee was unfairly dismissed and awarded her over Kshs 100,000, including house allowance, because the employer had no written contracts.
What this practically means
#Executive summary
#Key legal issues
#Whether wages were inclusive of house allowance
The wage was not inclusive of house allowance; claim of Kshs 40,500/- proved
Section 31 of the Employment Act obliges an employer to provide housing or pay a reasonable allowance. No written contract was produced, and the pay slips showed a basic wage of Kshs 15,000/- which could not include house allowance. The Respondent did not controvert the Claimant's computation of 15% of basic wage for 18 months, so the claim was proved.
Whether the Claimant absconded or was terminated
The Claimant did not abscond; she was asked to leave
The Court had two inconsistent versions. Had the Respondent's version been true, it would have issued an ultimatum or show-cause through known contacts. The Respondent took no such action, so the Claimant's version was found more probable.
Whether the termination was unfair
The termination was unfair both substantively and procedurally
Even on the abscondment defence, the Respondent was bound by section 41 procedural fairness and should have issued a show-cause. Further, absent repudiation being accepted by the innocent party, the relationship does not automatically end; the Respondent took no step to accept any repudiation. Whichever way viewed, the termination was unfair.
Whether the wrong party was sued
The Director was properly sued
The defence of misjoinder was not pursued at the hearing and fails anyway because section 2 of the Employment Act defines a manager, factor or foreman of the employer as an employer capable of being sued.
Leave entitlement
Claim for leave failed
The Respondent's witness stated leave was taken in instalments during April, August and December breaks, and the Claimant admitted in cross-examination that she took such leave; she did not demonstrate any accrued leave or balances.
Legal principles established
#- A basic wage cannot include house allowance; the employer must expressly indicate in a written contract whether a wage is consolidated
- Even where an employee absconds, the employer must still follow due process before dismissal
- Repudiation of an employment contract does not automatically end the employment relationship; the innocent party must accept the repudiation
- Under section 2 of the Employment Act, 2007, a manager, factor or foreman of the employer is an employer and can be sued
Court orders
#- 1.Respondent to pay the Claimant Kshs 15,000/- being 1 month pay in lieu of notice
- 2.Respondent to pay the Claimant Kshs 10,925/- being wages for June 2014
- 3.Respondent to pay the Claimant Kshs 40,500/- being 18 months house allowance
- 4.Respondent to pay the Claimant Kshs 34,500/- being 2 months wages as compensation for unfair termination
- 5.Total award of Kshs 100,925/-
- 6.Claim for leave is dismissed
- 7.Claimant to have costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment cause)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mary Mumbi Kariuki v Director,Pamoja Women Development Programme [2015] KEELRC 326 (KLR)", Case Analysis (2015). Cause No 389 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/326/eng@2015-10-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.