Scholar Katuvee Mulei v Maria Zermmlin [2016] KEELRC 1013 (KLR)
The bottom line
#A Mombasa court dismissed a domestic worker's claims for over Kshs. 1.3 million because she, not her employer, ended the job and couldn't prove her numbers.
What this practically means
#Executive summary
#Key legal issues
#Whether termination was at the instance of the Respondent and unfair/unlawful
Termination was not by the Respondent; the Claimant voluntarily decided not to return to work, as shown by her text message of 5th December 2014
The Claimant took annual leave, fell ill, and did not obtain proper sick leave under Section 30 of the Employment Act. She declined to be examined by the Respondent's Family Doctor without giving a reason. The text messages showed the Respondent repeatedly inviting her back, while the Claimant stated in her own message that she told a third party she was not coming back. The Respondent accommodated her illness and left the door open for her return; the Claimant shut that door. The decision to end employment was hers.
Whether the Claimant was underpaid
The underpayment claim failed; the Respondent paid above the applicable minimum wage
The Claimant did not point the Court to any wage instrument, contract of employment, collective agreement or wage order entitling her to more than Kshs. 12,000 monthly. A perusal of the applicable minimum wage orders over the employment period showed the Respondent paid above the wage floor. The claim of Kshs. 600,000 was therefore without foundation.
Whether overtime pay was payable
Rejected; the claim was not supported in law and fact
Overtime pay is structured under the General Wages Order: the daily rate and the excess hours must be shown. The Claimant simply apportioned herself Kshs. 3,000 per month for the entire period without reference to the statutory wage structure, and did not show the overtime was worked, approved and necessary in a household occupied by a couple and their dogs.
Whether the Claimant was entitled to annual leave pay
Treated as withdrawn following the Claimant's concession
The Claimant conceded on cross-examination that she took 30 days' annual leave every year and that she had just returned from leave at exit, and testified she had no claim for annual leave pay, though she pleaded it as leave allowance in the claim.
Legal principles established
#- Overtime pay is structured under the law and a claimant must show the daily rate and excess hours worked
- An employee must obtain proper sick leave in accordance with Section 30 of the Employment Act and may reasonably be asked to be examined by the employer's doctor
- Courts must recognize, promote and protect the rights and freedoms of Domestic Workers under the Constitution, the Employment Act and ILO Convention 189
- Where an employee voluntarily ends the employment relationship, she cannot claim compensation or notice pay for unfair termination
Court orders
#- 1.The Claim is dismissed.
- 2.30% of the costs of the Claim shall be paid by the Claimant to the Respondent.
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes under the Employment Act 2007 and Industrial Court (Procedure) Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (4)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Wangui v Teachers Service Commission & 3 others (Judicial Review E004 of 2023) [2023] KEELRC 2029 (KLR)[2023] KEELRC 2029 (KLR)18 Aug 2023
- Kenya Council of Employment and Migration Agencies v Attorney General & 3 others; State Department for Public Service & 2 others (Interested Parties) [2020] KEELRC 479 (KLR)[2020] KEELRC 479 (KLR)18 Sept 2020applied
- Mohammed Sheria & 2 others v Simon Kipkorir Sang & 5 others [2018] KEELRC 1103 (KLR)[2018] KEELRC 1103 (KLR)28 Sept 2018followed
- Jayantilal Dharamshi Gosrani v Attorney General & 3 others [2016] KEELC 160 (KLR)[2016] KEELC 160 (KLR)9 Aug 2016applied
Cite this brief
#Cite this brief
Caselaw, "Scholar Katuvee Mulei v Maria Zermmlin [2016] KEELRC 1013 (KLR)", Case Analysis (2016). Cause Number 336 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1013/eng@2016-07-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.