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ELRCPartially AllowedCause Number 314 of 2015· [2016] KEELRC 44 (KLR)

LMM v DIT Limited & SV [2016] KEELRC 44 (KLR)

Employment and Labour Relations Court (Industrial Court)
9 December 2016
5,353 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that domestic workers are full employees entitled to statutory rights, but rejected a maid's sexual harassment claim for lack of evidence.

What this practically means

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Executive summary

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The Claimant, a domestic worker, sued the 2nd Respondent (her employer, a foreign national on a work permit) and his company, claiming she was sexually harassed after the 2nd Respondent's wife travelled to India in June 2015, and summarily dismissed on 10th July 2015 after rebuffing his demands. She sought notice pay, accrued leave, 12 months' compensation for unfair termination, service pay, unpaid salary, house allowance, a certificate of service, payment for massage services, damages for sexual harassment and underpayment, totalling about Kshs. 461,859.90. The Respondents asserted she worked as a House Help, left employment voluntarily after persistent lateness, and was entitled only to Kshs. 5,806. The Court found the sexual harassment allegations unfounded, noting they were absent from the pleadings and demand letter, were uncorroborated by any follow-up with police or Fida, and arose only in 2015 after four years of service; the massage of the injured 2nd Respondent was consensual. However, the Court held termination, though on a valid ground (persistent lateness and absenteeism), was procedurally unfair because the Claimant was never heard; the 2nd Respondent had wrongly treated her as 'just a maid' outside the Employment Act. The Court awarded 5 months' salary (Kshs. 40,000) for unfair termination, annual leave pay (Kshs. 25,849), service pay (Kshs. 18,461), unpaid salary (Kshs. 11,076), payment for other services (Kshs. 7,000) and conceded underpayment (Kshs. 8,865), totalling Kshs. 111,251, ordered a Certificate of Service, and made no order as to costs. Notice pay, house allowance, damages for sexual harassment and the broader underpayment claim were rejected.

Key legal issues

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01

Whether the Claimant was sexually harassed by the 2nd Respondent

Holding

The claim of sexual harassment was rejected; the Claimant failed to give sufficient evidence requiring the 2nd Respondent to disprove the allegations

Reasoning

The Court noted inconsistencies and delays: the alleged attempted rape and lock-in were not pleaded; the demand letter by Kituo Cha Sheria did not centre on sexual harassment; police and Fida reports were not pursued; the harassment allegedly occurred only in 2015 after 4 years of service; and she volunteered to massage the 2nd Respondent and returned to the house. The massage was consensual and the narrative was an embellishment.

p. 6
02

Whether the termination of employment was unfair

Holding

Termination was on valid ground (persistent lateness and absenteeism) but procedurally unfair because the Claimant was not heard before being replaced

Reasoning

The 2nd Respondent treated the Claimant as 'just a maid' outside the Employment Act, did not provide pay slips, and did not hear her before termination. She was available on 10th July 2015 and no attempt was made to hear her explanation. Compensation of 5 months' salary was awarded, but notice pay was refused in light of her own conduct.

p. 8
03

Whether the Claimant's terminal dues and entitlements were proved

Holding

Annual leave pay, service pay, unpaid salary, payment for other services and conceded underpayment were allowed; house allowance and general underpayment claim were rejected

Reasoning

The Respondents did not establish that leave was granted or paid in lieu; the Claimant was not registered to any social security plan so deserved service pay under Section 35; no records contradicted her claim for June 2015 and July 2015 salary; accommodation having been offered and rejected, house allowance failed; underpayment was allowed only as conceded by the Respondents.

p. 8

Legal principles established

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  • Domestic workers are employees fully protected by the Employment Act; an employer cannot deny a 'maid' statutory rights such as pay slips and fair termination procedure
  • Annual leave entitlement is separate from public holiday entitlement; public holidays taken cannot be a replacement for annual leave
  • An employer who provides reasonable housing accommodation which the employee rejects is not obliged to pay house rent allowance
  • Claims for underpayment of salary must be founded on the applicable wage instrument

Court orders

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  1. 1.A declaration that the Claimant was not sexually harassed and is not entitled to damages for sexual harassment
  2. 2.A finding that termination was on valid ground but procedurally unfair, and to that extent unfair
  3. 3.Payment to the Claimant of the equivalent of 5 months' salary in compensation for unfair termination at Kshs. 40,000
  4. 4.Payment of annual leave pay at Kshs. 25,849
  5. 5.Payment of service pay at Kshs. 18,461
  6. 6.Payment of unpaid salary at Kshs. 11,076
  7. 7.Payment for other services rendered at Kshs. 7,000
  8. 8.Payment of underpayment of salary at Kshs. 8,865 - total Kshs. 111,251
  9. 9.Certificate of Service to issue
  10. 10.No order as to costs

Authorities

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Legislation

  • Employment Act 2007Section 6
  • Employment Act 2007Section 3
  • Employment Act 2007Section 31
  • Employment Act 2007Section 35
  • Employment Act 2007Sections 41, 43 and 45
  • Employment Act 2007Section 51
  • Employment Act 2007Part V
  • ILO Domestic Workers Convention 189of 2011

Cases cited (7)

  • John Wanjala Wanyama v. Wanandege Cooperative Savings and Credit Society
    [2016] e-KLR
  • Richard Kiplimo Koech v. Yako Supermarket Limited
    [2015] e-KLR
  • P.O. v. Board of Trustees, A.F. & 2 others
    [2014] e-KLR
  • NML v. Peter Petrausch
    [2015] e-KLR
  • Katuvee Mulei v. Maria Sermmlin
    [2016] e-KLR
  • Linet Akasa Shikoli v. Lilian Otundo
    [2014] e-KLR
  • Zena Ibrahim v. Ebubekirir
    Cause Number 11 of 2011
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act 2007 and the ILO Domestic Workers Convention 189 of 2011 (domestic employment dispute)

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, "LMM v DIT Limited & SV [2016] KEELRC 44 (KLR)", Case Analysis (2016). Cause Number 314 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/44/eng@2016-12-09

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.