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ELRCPartially AllowedCause No 389 of 2014· [2015] KEELRC 326 (KLR)

Mary Mumbi Kariuki v Director,Pamoja Women Development Programme [2015] KEELRC 326 (KLR)

Employment and Labour Relations Court
23 October 2015
1,519 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 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

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Executive summary

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The Claimant, Mary Mumbi Kariuki, sued the Director, Pamoja Women Development Programme, claiming unfair termination, notice pay, wages for 19 days in June 2014, house allowance and leave. The Respondent contended she absconded from work on 27 June 2014, that her wages were consolidated to include house allowance, and that she had taken her leave in instalments. The Court found no written contract existed and, applying sections 9, 10 and 31 of the Employment Act, 2007, held that a basic wage of Kshs 15,000/- shown on pay slips could not include house allowance; it awarded Kshs 40,500/- computed at 15% of basic wage for 18 months. On the conflicting accounts of separation, the Court found the Claimant's version more probable because the Respondent took no steps such as issuing a show-cause or ultimatum, and concluded she was asked to leave rather than absconded. Even on an abscondment scenario, section 41 procedural fairness would have been required, and repudiation does not automatically end employment absent acceptance by the innocent party; the termination was therefore unfair. The misjoinder defence failed because section 2 of the Employment Act defines a manager or foreman as an employer who may be sued. The Court awarded notice pay of Kshs 15,000/-, June 2014 wages of Kshs 10,925/-, house allowance of Kshs 40,500/- and compensation equivalent to two months' gross wages of Kshs 34,500/-, totalling Kshs 100,925/-. The leave claim was dismissed and the Claimant was awarded costs.

Key legal issues

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01

Whether wages were inclusive of house allowance

Holding

The wage was not inclusive of house allowance; claim of Kshs 40,500/- proved

Reasoning

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.

p. 2
02

Whether the Claimant absconded or was terminated

Holding

The Claimant did not abscond; she was asked to leave

Reasoning

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.

p. 3
03

Whether the termination was unfair

Holding

The termination was unfair both substantively and procedurally

Reasoning

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.

p. 3
04

Whether the wrong party was sued

Holding

The Director was properly sued

Reasoning

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.

p. 4
05

Leave entitlement

Holding

Claim for leave failed

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.Respondent to pay the Claimant Kshs 15,000/- being 1 month pay in lieu of notice
  2. 2.Respondent to pay the Claimant Kshs 10,925/- being wages for June 2014
  3. 3.Respondent to pay the Claimant Kshs 40,500/- being 18 months house allowance
  4. 4.Respondent to pay the Claimant Kshs 34,500/- being 2 months wages as compensation for unfair termination
  5. 5.Total award of Kshs 100,925/-
  6. 6.Claim for leave is dismissed
  7. 7.Claimant to have costs

Authorities

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Legislation

  • Employment Act, 2007section 31
  • Employment Act, 2007section 28
  • Employment Act, 2007sections 9, 10(3) and (7)
  • Employment Act, 2007section 41
  • Employment Act, 2007section 2

Cases cited (4)

  • Thomas Marshal (Exports) Ltd v Guinle
    (1978) IRLR 174
  • Howard v Pickford Tool Co. Ltd
    (1951) 1KB 417
  • London Transport Executive v Clarke
    (1981) IRLR 166
  • Philimona Aromba Mbalasi v Uni-Truck Ltd
    (2015) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment cause)

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, "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.