Miriam Wanjiru Mwenje v Dulcie Spencer [2015] KEELRC 437 (KLR)
The bottom line
#A Kenyan court ruled an employer who denied employing her domestic worker had to pay, because she failed to keep employment records.
What this practically means
#Executive summary
#Key legal issues
#Identity of the employer
The Respondent employed the Claimant, not the late Frank Howitt
The Claimant gave consistent testimony that she was employed and paid by the Respondent. The Respondent's witness conceded he was not present when the Claimant was told to return. The Respondent's affidavit had an inconsistent jurat and claimed she first learned of the Claimant on filing suit despite living with her brother. No ownership documents or employment records were produced despite the s.74 duty, so the Court found the Respondent was the employer.
Whether termination was unfair
The dismissal was abrupt, without notice or hearing, and therefore unfair
The Claimant was accused of theft, dismissed on the spot, told to surrender her apron, and never charged despite police investigations finding no evidence to warrant prosecution. No hearing preceded the dismissal, contravening Sections 43 and 45 of the Employment Act.
House allowance
Claim for house allowance failed
Because there was no proof that the last earned salary of Kshs. 9,000/- was not already inclusive of house allowance, the claim failed.
Compensation for unfair termination
Six months' salary awarded as compensation, taking into account the manner of termination
In view of the abrupt and humiliating manner of termination, the Court granted compensation of Kshs. 54,000/- being 6 months' salary rather than the 12 months sought.
Legal principles established
#- Section 74 of the Employment Act places the burden on the employer to keep and provide employment records; failure to avail records where the alleged employer lived with the deceased alleged employer leads to an inference that the respondent was the employer
Court orders
#- 1.Payment in lieu of notice of Kshs. 9,000/-
- 2.Severance pay for 15 years of service of Kshs. 67,500/-
- 3.Compensation of Kshs. 54,000/- being 6 months' salary for unfair termination
- 4.Costs of the suit to the Claimant
- Jurisdiction invoked
- Employment and labour relations dispute under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Miriam Wanjiru Mwenje v Dulcie Spencer [2015] KEELRC 437 (KLR)", Case Analysis (2015). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/437/eng@2015-08-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.