Pilisila Iminza Akoyo v Farzana Zahir [2015] KEELRC 728 (KLR)
The bottom line
#A Kenyan employer with no written employment contract lost, paying a house help Kshs.110,000 because she could not prove employment terms.
What this practically means
#Executive summary
#Key legal issues
#Burden of proof where no written contract exists
The burden of proving the alleged terms of employment falls on the employer who failed to produce a written contract
The respondent never filed a response or appeared. No appointment letter or contract was issued. Under Section 10(7) of the Employment Act, an employer who fails to produce a written contract bears the burden of proving or disproving the alleged terms. As the respondent adduced no evidence on hours of work or mode of payment, the claimant's uncontroverted evidence was accepted.
Unlawful termination
The termination was unlawful and the claimant was awarded general damages equivalent to 6 months' salary
The claimant testified she was summoned back to work while unwell after a fall, then terminated at 10 pm on 14/9/2014 and given Kshs.5,000 and told to leave. The respondent's assertion that she left on her own volition was unsupported by any evidence of payment of dues. In the absence of any valid reason or procedure, the termination was unlawful.
Entitlement to notice pay, service pay and leave
The claimant, having worked 2 years without leave, was awarded one month's notice pay, service pay for 2 years and leave allowance for 2 years
The claimant's uncontroverted evidence was that she worked without leave and was never paid overtime or given notice. The respondent's letter claiming to have paid all dues including 6 months' pay, accrued leave and service pay was unsupported: no evidence of the payments was adduced before the court, so the claimant's position was adopted.
Legal principles established
#- Where an employer fails to produce a written contract in legal proceedings, the burden of proving or disproving an alleged term of employment is on the employer
- In the absence of evidence from the employer, the court will take the claimant's uncontroverted evidence as to the terms of employment
Court orders
#- 1.Payment of 1 month salary in lieu of notice of Kshs.11,000
- 2.Payment of service pay for 2 years of Kshs.11,000
- 3.Payment of leave allowance for 2 years of Kshs.22,000
- 4.General damages for unlawful termination equivalent to 6 months salary of Kshs.66,000
- 5.Total award of Kshs.110,000
- 6.The Claimant should also be given a Certificate of Service
- 7.Respondent to pay costs of this suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (Cause No. 1905 of 2014)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Pilisila Iminza Akoyo v Farzana Zahir [2015] KEELRC 728 (KLR)", Case Analysis (2015). Cause No. 1905 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/728/eng@2015-07-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.