Christine Martha Wanjiru Mwangi v Attorney General [2018] KEELRC 1193 (KLR)
The bottom line
#A Kenyan court ruled an employer must pay a worker who laboured ten months without pay or a written contract, calling it servitude.
What this practically means
#Executive summary
#Key legal issues
#Existence and terms of the employment relationship after retirement
The claimant was in continuous employment from 1st April 2009 until 29th January 2010 on oral terms, with the written contract never issued
The letter of 3rd April 2009 retained the claimant on a short-term basis pending a contract that never issued. She worked 10 months without payment or written terms. The employer's statutory duty under sections 8, 9 and 10 of the Employment Act to draw and issue a written contract was not executed, and the oral engagement beyond three months attracted statutory protection.
Unfair termination
The claimant's exclusion from her office on 28th January 2010 without notice or valid reason amounted to unfair termination lacking substance and procedure
The employer failed to abide by clear statutory provisions without justification, and no genuine reason was advanced for failing to issue the written contract. Termination without payment of dues and without notice or good cause was unfair, entitling the claimant to compensation under section 49 of the Employment Act, 2007.
Quantum of salary payable
The resolved rate of Kshs.400,000.00 gross per month for 10 months (total Kshs.4,000,000.00) was found fair and reasonable; DFID's £5,500 counter-offer was rejected for want of the claimant's consent
The meeting of 19th July 2010, convened by the respondent with Treasury participation, resolved a gross salary of Kshs.400,000.00 per month less taxes. The court adopted this resolution as fair and reasonable under section 9(2), and held the DFID offer of £5,500 invalid because consent as required by law was absent.
Legal principles established
#- The duty to draw up and issue a written contract of employment vests in the employer, not the employee, where the contract exceeds three months
- An employee engaged under an oral contract exceeding three months is protected by section 37 of the Employment Act and enjoys all rights under the Act including protection against unfair termination
- Prolonged engagement of an employee without payment or a written contract constitutes servitude prohibited under the Constitution
Court orders
#- 1.Judgment entered for the claimant against the respondent
- 2.Award of Kshs.4,000,000.00 due salaries for the 10 months worked
- 3.Award of Kshs.400,000.00 being one month's salary as compensation for unfair termination
- 4.Amounts awarded to be subject to section 49(2) of the Employment Act, 2007
- 5.Costs of the suit to the claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, 2007 and the court's establishment); claim for unfair termination and unpaid salary
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Christine Martha Wanjiru Mwangi v Attorney General [2018] KEELRC 1193 (KLR)", Case Analysis (2018). Cause No. 2289 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1193/eng@2018-05-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.