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ELRCPartially AllowedNot stated in the judgment· [2019] KEELRC 1847 (KLR)

Elizabeth Muthoni Muriithi v Joseph Muchina Muriuki & another [2019] KEELRC 1847 (KLR)

Employment and Labour Relations Court
8 April 2019
2,152 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that a house help was employed by the individuals she worked for, not their company, and that assault at work amounted to constructive dismissal.

What this practically means

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Executive summary

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The Claimant sued the Respondents, alleging she was employed by them as a house help from 17th March 2014 at Kshs. 11,470 per month, that she was assaulted at their rural home on about 3rd May 2016 creating an unbearable work environment, and that she consequently resigned on 4th May 2016. She claimed overtime, holiday pay, accrued leave, severance pay, a declaration of constructive dismissal and damages of twelve months' salary. The Respondents denied employing her, asserting she was engaged and paid through Zocom Limited at Kshs. 8,000 rising to 8,800 monthly, that she absconded rather than resigned, and that investigations found the assault allegations baseless. Three witnesses testified. The court applied the control test and Section 2 of the Employment Act and found the Respondents, not the company, were the employers, since the Claimant worked at their matrimonial and rural homes for their personal benefit and the leave form was not proof of a contract. On the assault, the court accepted the P3 form and testimony that something untoward occurred, and held that because the assault preceded her disappearance from the workplace, this was classic constructive dismissal. However, the claims for overtime, holiday pay, leave and severance failed for want of proof, the court finding it highly unlikely she worked 18-hour days. The court awarded damages for unlawful dismissal of six months' salary (Kshs. 70,200), one month's salary in lieu of notice (Kshs. 11,700), costs of the suit, and interest on the two awards at court rates from the date of judgment until payment in full.

Key legal issues

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01

Who was the Claimant's employer - the individual Respondents or Zocom Limited?

Holding

The Respondents, not Zocom Limited, were the Claimant's employers.

Reasoning

Applying the control test and Section 2 of the Employment Act, the court found the Respondents exercised control over the Claimant, who worked at their matrimonial and rural homes for their personal benefit. The leave form exhibited by the Respondents was not a contract of employment and did not prove the employment relationship lay with the company. The company had no business at the matrimonial home.

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02

Was the Claimant constructively dismissed?

Holding

Yes - the assault on the Claimant preceded her departure and amounted to classic constructive dismissal.

Reasoning

The court found, on the testimony and the P3 form, that the Claimant was assaulted between 2nd and 3rd May 2016 at the Respondents' rural home, even though investigations called the allegations baseless. Since the assault preceded her disappearance from the workplace, the court concluded the conduct amounted to constructive dismissal entitling her to damages.

p. 2
03

Was the Claimant entitled to overtime, holiday pay, leave and severance?

Holding

No - those claims failed for want of proof.

Reasoning

The court found it highly unlikely the Claimant worked 18 hours a day in a house occupied by two people away at work on weekdays. She had taken leave from time to time and the specific holidays worked were not identified. Severance was also not payable. Only damages for dismissal and notice pay were awarded.

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Legal principles established

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  • An assault of an employee by a person connected with the workplace which precedes the employee's departure from employment constitutes constructive dismissal
  • The identity of the employer is determined by the control test and the definition of employer under Section 2 of the Employment Act, notwithstanding payment through a company

Court orders

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  1. 1.Damages for unlawful dismissal at 6 months' salary of Kshs. 70,200/-
  2. 2.One month's salary in lieu of notice of Kshs. 11,700/-
  3. 3.Costs of the suit to the Claimant
  4. 4.Interest on the damages and notice pay at court rates from date of judgment till payment in full
Jurisdiction invoked
Original employment and labour relations jurisdiction (Employment Act; Employment and Labour Relations Court)

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, "Elizabeth Muthoni Muriithi v Joseph Muchina Muriuki & another [2019] KEELRC 1847 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1847/eng@2019-04-08

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