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ELRCAllowedCause No. 618 of 2015· [2016] KEELRC 1419 (KLR)

Esther Vujede Lumadede v Benedicte Tichit [2016] KEELRC 1419 (KLR)

Employment and Labour Relations Court
15 March 2016
1,071 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi court awarded a house help 12 months' salary after her employer fired her without notice or a hearing, even though trust had broken down.

What this practically means

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Executive summary

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The Claimant, employed as a house help/Ayah from 6 January 2014 under an oral contract at a monthly basic salary of Kshs. 15,000/= plus 15% house allowance, sued the Respondent for unfair dismissal and unpaid terminal benefits following her summary dismissal on 26 January 2015. She alleged she was never issued a show cause letter nor given a hearing, and that her house allowance, NSSF and NHIF dues were not paid, contrary to Sections 41 and 45 of the Employment Act 2007 and Articles 10, 41 and 47 of the Constitution. The Respondent denied the claims, asserting that a County Labour Office complaint had resulted in payment of one month's salary in lieu of notice and half salary as service pay (offset against a Kshs. 20,000/= salary advance admitted by text message), that she regularly paid additional sums for NHIF and NSSF for the Claimant to remit directly, and that the Claimant was opportunistic and took advantage of her generosity. The Respondent prayed for dismissal of the claim with costs. The court found the circumstances of dismissal unclear; the termination letter cited loss of trust concerning the baby but no hearing under Section 41 was proved. Holding that even where trust is lacking the law on notice and hearing must be followed, the court found the termination unfair and awarded the Claimant notice pay (Kshs. 15,000/=), house allowance (Kshs. 29,250/=), service pay (Kshs. 7,500/=) and 12 months' salary as compensation (Kshs. 180,000/=), totalling Kshs. 231,750/=, plus costs and interest, and ordered issuance of a Certificate of Service. Judgment was delivered on 15 March 2016 by Lady Justice Hellen S. Wasilwa, the Respondent not appearing.

Key legal issues

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01

Procedural fairness in termination of employment

Holding

The termination was unfair because the employer failed to prove that the Claimant was given a hearing as required by Section 41 of the Employment Act 2007.

Reasoning

The court found the circumstances of the dismissal unclear; the termination letter cited loss of trust regarding the baby without details of what transpired. The court held that even where trust breaks down in a domestic employment involving a baby, the employer must still give notice and a proper hearing. No proof of a Section 41 hearing existed, so the termination was unfair, justifying notice pay, house allowance, service pay and maximum compensation of 12 months' salary.

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02

Entitlement to unpaid house allowance and service pay

Holding

The Claimant was awarded house allowance at 15% of basic salary for 13 months and service pay of 15 days' salary, having not been paid these heads.

Reasoning

The Claimant's uncontroverted evidence was that her agreed house allowance (15% of basic salary) and NSSF/NHIF remittances were not paid. The Respondent claimed she paid additional sums for NHIF and NSSF trusting the Claimant to remit directly, but the court did not accept this as discharging the obligation. Service pay equivalent to 15 days' salary was also awarded for the roughly 13 months worked.

p. 3

Legal principles established

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  • Where termination is justified by loss of trust, the employer must still adhere to the law by giving notice and a proper hearing before terminating.
  • An employer who cannot prove that a hearing under Section 41 of the Employment Act occurred effects an unfair termination.

Court orders

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  1. 1.1 month's salary in lieu of notice of Kshs. 15,000/= awarded to the Claimant
  2. 2.House allowance being 15% of salary x 13 months worked, i.e. Kshs. 29,250/= awarded
  3. 3.Service pay for 1 month, i.e. 15 days salary of Kshs. 7,500/= awarded
  4. 4.12 months' salary as compensation for unlawful termination, i.e. Kshs. 180,000/= awarded
  5. 5.Total award of Kshs. 231,750/= plus costs and interest
  6. 6.Respondent to issue the Claimant with a Certificate of Service

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSections 35(1), 36
  • Employment ActSections 41, 45, 31
  • Constitution of KenyaArticles 10, 41, 47
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act 2007 (employment dispute arising from oral contract of service)

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, "Esther Vujede Lumadede v Benedicte Tichit [2016] KEELRC 1419 (KLR)", Case Analysis (2016). Cause No. 618 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1419/eng@2016-03-15

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