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ELRCPartially AllowedNot stated in the judgment as provided· [2015] KEELRC 437 (KLR)

Miriam Wanjiru Mwenje v Dulcie Spencer [2015] KEELRC 437 (KLR)

Employment and Labour Relations Court
10 August 2015
2,304 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Claimant, a domestic worker, sued the Respondent alleging wrongful and unfair termination following her dismissal on 2nd July 2013 after being accused of stealing a gold chain worth Kshs. 100,000/-. She sought payment in lieu of notice, service pay for 15 years, house allowance, 12 months' salary as damages and costs. The Respondent denied employing the Claimant, contending she was employed by her late brother, Frank Howitt, and that no contract of service existed between them. The Respondent's witness testified the deceased was the employer, but under cross-examination conceded he was not present at the police station. The Respondent's affidavit contained an inconsistent jurat and asserted she first learned of the Claimant upon filing of the suit, which the Court found implausible given that she lived with her brother. No documents of house ownership or employment records were produced, despite the burden under Section 74 of the Employment Act on employers to keep and provide records. The Court found that the Respondent employed the Claimant and that her dismissal was abrupt, without notice or hearing, contrary to Sections 43 and 45 of the Employment Act. The claim was partially allowed: Kshs. 9,000/- in lieu of notice, Kshs. 67,500/- severance pay for 15 years of service, and Kshs. 54,000/- as six months' compensation for unfair termination, with costs to the Claimant. The house allowance claim failed for lack of proof that the salary was not inclusive of it.

Key legal issues

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01

Identity of the employer

Holding

The Respondent employed the Claimant, not the late Frank Howitt

Reasoning

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.

p. 4
02

Whether termination was unfair

Holding

The dismissal was abrupt, without notice or hearing, and therefore unfair

Reasoning

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.

p. 4
03

House allowance

Holding

Claim for house allowance failed

Reasoning

Because there was no proof that the last earned salary of Kshs. 9,000/- was not already inclusive of house allowance, the claim failed.

p. 4
04

Compensation for unfair termination

Holding

Six months' salary awarded as compensation, taking into account the manner of termination

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.Payment in lieu of notice of Kshs. 9,000/-
  2. 2.Severance pay for 15 years of service of Kshs. 67,500/-
  3. 3.Compensation of Kshs. 54,000/- being 6 months' salary for unfair termination
  4. 4.Costs of the suit to the Claimant

Authorities

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Legislation

  • Employment ActSection 45
  • Employment ActSection 43
  • Employment ActSection 74
  • Labour Institutions ActDefinition of employer
  • Constitution of Kenya, 2010Article 47

Cases cited (5)

  • P.O v Board of Trustees AF & 2 Others
    [2014] eKLR
  • Alhonce Maghanga Mwachanya v Operation 680 Limited
    [2013] eKLR
  • Loice Otieno v Kenya Commercial Bank Ltd
    [2013] eKLR
  • Lilian Nyaboe Nyaribo v Wireless Innovations Nairobi Limited
    [2013] eKLR
  • Joshua Lihanda v Outdoor Occasions Limited
    [2014] eKLR
Jurisdiction invoked
Employment and labour relations dispute under the Employment Act, 2007

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, "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.