Kenya Union of Domestic Hotels Educational Institutions and Hospital Workers (KUDHEIHA) v Fatuma Mohamed [2015] KEELRC 629 (KLR)
The bottom line
#A Kenyan court awarded a house help over Kshs.137,000 after her employer terminated her verbally, confirming domestic workers enjoy full employment law protections.
What this practically means
#Executive summary
#Key legal issues
#Unfair termination
The respondent liable for unfairly terminating the grievant verbally on 4th December 2009 without notice or reasons.
Section 35 of the Employment Act envisages a written letter of termination stating reasons to enable the employee to challenge the termination. The grievant was verbally terminated without notice or a chance to be heard, contrary to section 41 of the Employment Act, amounting to an unfair labour practice prohibited under Article 41 of the Constitution and unfair termination under section 45.
Written contract of service
Employers must issue a written contract within two months; absent one, the employee's verbal account suffices.
Section 10 of the Employment Act requires the employer to issue a written contract within two months of employment. Where none is issued, the employee's verbal assertions must suffice in the absence of a written agreement stating otherwise, and employers should reduce oral contracts into writing at the earliest opportunity.
Service pay
Service pay due where the employer fails to remit statutory dues such as NSSF.
Under section 35(6) of the Employment Act, service pay is due where statutory dues are not remitted. The grievant was not registered with NSSF and no payslip or statement showing remittance existed, entitling her to service pay computed on the minimum wage.
Compensation under section 49
Compensation of 12 months' salary awarded based on the minimum wage of Kshs.6,130.00 for a House Help in 2009.
Compensation was awarded based on the minimum wage applicable for the position of House Help in 2009 and applying section 49 of the Employment Act at 12 months' salary.
Legal principles established
#- A verbal contract of employment is enforceable and confers rights under the Employment Act.
- Where no written contract is issued, the verbal assertions of the employee suffice in the absence of a written agreement stating otherwise.
- Termination without written notice or written reasons is an unfair labour practice under Article 41 of the Constitution and section 35 of the Employment Act.
- Domestic workers and house helps are protected employees entitled to minimum wage and statutory protections.
Court orders
#- 1.Declaration that the termination of the grievant by the respondent was unfair
- 2.Compensation awarded at Kshs.73,560.00
- 3.Notice pay at Kshs.6,130.00
- 4.Underpayment awarded at Kshs.26,194.00
- 5.House allowances awarded at Kshs.14,240.00
- 6.Leave pay awarded at Kshs.4,291.00
- 7.Off days awarded at Kshs.9,864.00
- 8.Service pay awarded at Kshs.3,065.00
- 9.Costs of the suit to the claimant
- Jurisdiction invoked
- Article 41 of the Constitution and the Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Domestic Hotels Educational Institutions and Hospital Workers (KUDHEIHA) v Fatuma Mohamed [2015] KEELRC 629 (KLR)", Case Analysis (2015). Cause No. 1035 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/629/eng@2015-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.