Milkah Wairimu Kamau v Hekima Place Trust Inc (Cause 1720 of 2015) (Employment and Labour) [2019] KEELRC 1278 (KLR)
The bottom line
#A Kenyan court awarded a childcare worker 8 months' salary because her employer could not prove valid reasons or follow fair disciplinary procedure before firing her.
What this practically means
#Executive summary
#Key legal issues
#Validity of the reason for termination
The Respondent failed to prove valid reasons; its allegations remained unproven
The Respondent alleged that the Claimant tarnished its name by demanding a colleague's arrest, publicising her relationship and causing an obscene photo to be posted. RW1 conceded she had no OB or proof of the obscene photo. Under Section 43 of the Employment Act the employer must prove valid reasons for termination. The allegations therefore remained mere allegations and the reason was not established.
Procedural fairness of the termination
The Claimant was not subjected to due process before termination
The meeting at the Shade Hotel was not notified to the Claimant as a disciplinary hearing and she was not told she could defend herself. The minutes of the meeting were not produced in court, so the court could not establish that a hearing took place or assess its fairness. The process therefore fell short of the fair procedure requirement in Section 45(2)(c) of the Employment Act.
House allowance claim
Claim untenable because salary was consolidated with house allowance
The Claimant admitted in cross-examination that clause 6 of her appointment letter stated her salary included house benefits. Section 31(2)(a) of the Employment Act excludes from the housing obligation employees whose contracts consolidate a housing element into the basic wage. The claim for house allowance therefore failed.
Overtime claim
Not proved; computed hours did not exceed the statutory maximum
The appointment letter indicated the hours of work. The court calculated that the Claimant worked 96 hours over 4 days and had 48 hours off, leaving 48 hours worked weekly, equal to the maximum of 8 hours by 6 days. Since no excess hours were worked, no overtime was payable and the claim was not proved.
Gratuity claim
Not payable as the Claimant was an NSSF member
The Claimant's payslip evidenced NSSF membership. Section 35(6) of the Employment Act provides that gratuity is not payable to NSSF members, whose entitlements are covered by statutory contributions. The gratuity claim for the 7 years worked therefore failed.
Legal principles established
#- An employer bears the burden of proving valid reasons for termination; unproven allegations cannot justify dismissal
- A termination is unfair under Section 45(2) of the Employment Act where the employer fails to prove a valid and fair reason and a fair procedure
- A contractual provision consolidating house allowance into basic salary ousts a claim for house allowance
- Gratuity is not payable to an employee who is a member of the NSSF
Court orders
#- 1.The Respondent to pay the Claimant 8 months' salary as compensation for unfair termination (KShs. 161,920)
- 2.The Respondent to pay the Claimant 1 month's salary in lieu of notice (KShs. 20,240), totalling KShs. 182,160
- 3.The Respondent to pay costs of the suit plus interest at court rates from the date of judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act 2007; Statement of Claim filed 24th September 2015)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Milkah Wairimu Kamau v Hekima Place Trust Inc (Cause 1720 of 2015) (Employment and Labour) [2019] KEELRC 1278 (KLR)", Case Analysis (2019). Employment and Labour Relations Court Cause (Statement of Claim dated 24th September 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1278/eng@2019-06-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.