Esther Vujede Lumadede v Benedicte Tichit [2016] KEELRC 1419 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Procedural fairness in termination of employment
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.
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.
Entitlement to unpaid house allowance and service pay
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.
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.
Legal principles established
#- 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
#- 1.1 month's salary in lieu of notice of Kshs. 15,000/= awarded to the Claimant
- 2.House allowance being 15% of salary x 13 months worked, i.e. Kshs. 29,250/= awarded
- 3.Service pay for 1 month, i.e. 15 days salary of Kshs. 7,500/= awarded
- 4.12 months' salary as compensation for unlawful termination, i.e. Kshs. 180,000/= awarded
- 5.Total award of Kshs. 231,750/= plus costs and interest
- 6.Respondent to issue the Claimant with a Certificate of Service
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act 2007 (employment dispute arising from oral contract of service)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.