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ELRCPartially AllowedStatement of Claim dated 18th November 2016· [2020] KEELRC 678 (KLR)

Kasyoka Wambua & 2 others v Harish Shah [2020] KEELRC 678 (KLR)

Employment and Labour Relations Court
7 May 2020
LNLINNET NDOLO
1,168 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court in Machakos ruled that the man who pays your salary is your employer, even if you work caring for someone else.

What this practically means

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Executive summary

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Three former house helps sued Harish Shah for unlawful termination of employment, claiming notice pay, leave, overtime, off-duty and underpayment dues plus 12 months' compensation, certificates of service and costs. They had been employed on diverse dates between May 2013 and September 2015, earning between Kshs. 9,000 and 12,500 monthly, to take care of the Respondent's mother, the late Mrs. Sumati L. Shah, who died on 2nd May 2016; their employment was terminated verbally on 4th May 2016. The Respondent denied employing them, asserting they were employed by his late mother and were rendered redundant upon her death, upon which he paid them terminal dues. The court framed three issues: the existence of an employment relationship, the lawfulness of the termination, and entitlement to remedies. On the first, it held that the Respondent employed the Claimants and deployed them to his mother, since she had no independent income and the Respondent admitted making payments to the Claimants. On termination, the court found the Claimants' employment was dependent on the life of Mrs. Shah and was akin to a fixed term contract terminating by effluxion of time; the unlawful termination claim therefore failed, as did compensation and notice pay. Leave pay claims succeeded uncontroverted, awarded at Kshs. 26,250, 6,390 and 4,200 respectively, with interest from the date of judgment. Underpayment, overtime and off-duty claims were dismissed for lack of evidence. The Claimants received certificates of service and costs.

Key legal issues

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01

Employment relationship

Holding

The Respondent, not his late mother, was the employer

Reasoning

The Respondent pleaded that the Claimants were employed by his late mother, yet admitted paying them after her death. There was no evidence the deceased had an independent source of income from which salaries were drawn, as he merely provided her financial support. The court therefore found the Respondent employed the Claimants and deployed them to care for his mother.

p. 3
02

Lawfulness of termination

Holding

No unlawful termination; employment ended by effluxion of the event on which it was founded

Reasoning

The Claimants conceded they were deployed to serve the late Mrs. Sumati L. Shah and that after her death there was no more work. Their employment was dependent on her life and could not survive her death, resembling a fixed term contract terminating by effluxion of time, so compensation and notice pay claims collapsed.

p. 3
03

Leave pay

Holding

Leave claims allowed as uncontroverted

Reasoning

The Claimants said they were never allowed annual leave nor paid in lieu. The Respondent adduced no evidence to the contrary, so the court allowed leave pay computed per claimant and awarded interest from the date of judgment until payment in full.

p. 3
04

Underpayment, overtime and off duties

Holding

Dismissed for want of evidence

Reasoning

No evidential support was adduced for these heads of claim, and a claimant bears the burden of proving the sums claimed. The court therefore dismissed the underpayment, overtime and off-duty claims.

p. 3

Legal principles established

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  • An employer is the person who enters into the contract of service and who funds the wages, not necessarily the person to whose service the employee is deployed
  • Employment whose duration is dependent on the life of a particular person is akin to a fixed term contract that terminates by effluxion of time without the incidents of unfair termination

Court orders

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  1. 1.Claims for leave pay allowed: 1st Claimant Kshs. 26,250; 2nd Claimant Kshs. 6,390; 3rd Claimant Kshs. 4,200
  2. 2.Interest at court rates from the date of judgment until payment in full
  3. 3.Claimants entitled to certificates of service
  4. 4.Claimants awarded costs of the case

Authorities

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Legislation

  • Employment ActSection 2
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 40
  • Civil Procedure ActSection 18
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act

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, "Kasyoka Wambua & 2 others v Harish Shah [2020] KEELRC 678 (KLR)", Case Analysis (2020). Statement of Claim dated 18th November 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/678/eng@2020-05-07

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