LMM v DIT Limited & SV [2016] KEELRC 44 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Claimant was sexually harassed by the 2nd Respondent
The claim of sexual harassment was rejected; the Claimant failed to give sufficient evidence requiring the 2nd Respondent to disprove the allegations
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.
Whether the termination of employment was unfair
Termination was on valid ground (persistent lateness and absenteeism) but procedurally unfair because the Claimant was not heard before being replaced
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.
Whether the Claimant's terminal dues and entitlements were proved
Annual leave pay, service pay, unpaid salary, payment for other services and conceded underpayment were allowed; house allowance and general underpayment claim were rejected
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.
Legal principles established
#- 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
#- 1.A declaration that the Claimant was not sexually harassed and is not entitled to damages for sexual harassment
- 2.A finding that termination was on valid ground but procedurally unfair, and to that extent unfair
- 3.Payment to the Claimant of the equivalent of 5 months' salary in compensation for unfair termination at Kshs. 40,000
- 4.Payment of annual leave pay at Kshs. 25,849
- 5.Payment of service pay at Kshs. 18,461
- 6.Payment of unpaid salary at Kshs. 11,076
- 7.Payment for other services rendered at Kshs. 7,000
- 8.Payment of underpayment of salary at Kshs. 8,865 - total Kshs. 111,251
- 9.Certificate of Service to issue
- 10.No order as to costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.