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ELRCPartially AllowedCause No. 1905 of 2014· [2015] KEELRC 728 (KLR)

Pilisila Iminza Akoyo v Farzana Zahir [2015] KEELRC 728 (KLR)

Employment and Labour Relations Court at Nairobi
8 July 2015
591 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This was an undefended claim decided on formal proof before Hellen S. Wasilwa J of the Employment and Labour Relations Court at Nairobi. The claimant, Pilisila Iminza Akoyo, alleged she was employed by the respondent, Farzana Zahir, as a house girl from 28/2/2013 at a monthly salary of Kshs.11,000, working from 6 am to 2 am without leave or overtime. She testified that on 14/9/2014, having fallen and injured herself on a slippery floor, she was summoned back to work before fully healing and was terminated at 10 pm the same day, being given Kshs.5,000 and asked to leave. She sought Kshs.231,000 as particularised in her claim. The respondent, though served, neither entered appearance nor filed a defence and did not attend the formal proof hearing. A letter from the respondent admitted the employment until 14/9/2014 and asserted that all dues had been paid, but no evidence of those payments was adduced, and no written contract existed. Relying on Section 10(7) of the Employment Act, the court held the burden of proving or disproving the terms of employment lay on the employer and adopted the claimant's uncontroverted evidence. The court awarded one month's salary in lieu of notice (Kshs.11,000), service pay for 2 years (Kshs.11,000), leave allowance for 2 years (Kshs.22,000) and general damages for unlawful termination equivalent to 6 months' salary (Kshs.66,000), totalling Kshs.110,000. It further ordered a Certificate of Service and that the respondent pay the costs of the suit.

Key legal issues

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01

Burden of proof where no written contract exists

Holding

The burden of proving the alleged terms of employment falls on the employer who failed to produce a written contract

Reasoning

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.

p. 1
02

Unlawful termination

Holding

The termination was unlawful and the claimant was awarded general damages equivalent to 6 months' salary

Reasoning

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.

p. 2
03

Entitlement to notice pay, service pay and leave

Holding

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

Reasoning

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.

p. 1

Legal principles established

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  • 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

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  1. 1.Payment of 1 month salary in lieu of notice of Kshs.11,000
  2. 2.Payment of service pay for 2 years of Kshs.11,000
  3. 3.Payment of leave allowance for 2 years of Kshs.22,000
  4. 4.General damages for unlawful termination equivalent to 6 months salary of Kshs.66,000
  5. 5.Total award of Kshs.110,000
  6. 6.The Claimant should also be given a Certificate of Service
  7. 7.Respondent to pay costs of this suit

Authorities

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Legislation

  • Employment ActSection 10(7)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (Cause No. 1905 of 2014)

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, "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.