Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedNot stated in the judgment· [2020] KEELRC 1076 (KLR)

Mary Ambogo Odando v Adam Singindura Marjan & another [2020] KEELRC 1076 (KLR)

Employment and Labour Relations Court
12 May 2020
2,196 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

A Kenyan court awarded a domestic worker service pay and leave dues after decades of work, but rejected her unfair termination claim because she couldn't prove it.

What this practically means

#

Executive summary

#
The claimant sued the respondents, alleging she was employed as a domestic worker/house help from 7 April 1982 and terminated in 2015 without due process, seeking a declaration of unfair termination, terminal benefits of Kshs.844,413.40, compensation of Kshs.232,848, costs and interest. The respondents denied employing her, describing her as a friend of the 1st respondent's late wife who helped with household chores from June 2010 and remained after Zeitun's death; they admitted paying her Kshs.80,000 as upkeep. The respondents did not attend the hearing or file submissions. The court framed three issues: who employed the claimant and from when; whether her employment was unfairly terminated; and entitlement to the reliefs sought. It found that she was employed by Zeitun Hussein Adams, who died on 24 December 2010, after which the 2nd respondent took over her services. On termination, the court held there was no unfair termination under Section 45 of the Employment Act; the evidence pointed to a mutual separation resembling retirement due to the claimant's advanced age, with the respondents making cordial payments after she stopped working. Leave was awarded for 84 days (Kshs.18,880.60) and service pay of Kshs.111,265 for 33 years under Section 35(5), a total award of Kshs.130,145.60. Claims for notice pay, unpaid salary, underpayment, overtime and 12 months' compensation failed for lack of proof. The respondent was ordered to pay costs, with interest from the date of judgment. Judgment was delivered remotely under COVID-19 directions.

Key legal issues

#
01

Who was the claimant's employer and from what date

Holding

She was employed by the late Zeitun Hussein Adams and, upon the latter's death on 24 December 2010, the 2nd respondent took over her services; she was therefore an employee of the 2nd respondent at termination

Reasoning

The witness statement indicated employment by the 1st respondent and his deceased wife, while the 2nd respondent's response to the demand letter stated he took over her services after his mother's death. A death certificate proved Zeitun died on 24 December 2010. The court resolved the dispute on that evidence and fixed the 2nd respondent as the employer from that date.

p. 2
02

Whether employment was unfairly terminated

Holding

No unfair termination proved; the separation resembled a mutual parting or retirement due to the claimant's advanced age

Reasoning

The two versions (termination by the 2nd respondent versus absconding) were both unclear, and post-separation dealings were cordial, with the 2nd respondent depositing Kshs.80,000 into an account the claimant was asked to open. The claimant's own statement described being told to go and rest repeatedly, consistent with retirement. Section 41 hearings were held to be impractical in domestic settings, and no unfair termination under Section 45 was established.

p. 3
03

Entitlement to accrued leave

Holding

Awarded accrued leave of Kshs.18,880.60 for the period employed by the 2nd respondent (January 2010 to December 2014)

Reasoning

The claimant testified she never proceeded on leave, and this allegation was not disproved by the respondent. Leave was only awarded for the period the 2nd respondent was her employer, computed at the minimum wage for All Other Areas (Kshs.5,844.20) applicable to Ongata Rongai, for 84 leave days.

p. 3
04

Entitlement to service pay

Holding

Service pay of Kshs.111,265 awarded under Section 35(5) of the Employment Act, computed for 33 years

Reasoning

The claimant worked from 1982 without NSSF contributions, entitling her to service pay under Section 35(5). Although the 2nd respondent only became her employer in 2010, the court awarded service pay for the full 33 years on the basis that he took over her services after his mother's death.

p. 3

Legal principles established

#
  • In domestic employment relationships the provisions of the Employment Act, including the Section 41 disciplinary hearing, may not be practical in all circumstances
  • A claimant who fails to prove unfair termination cannot succeed on a claim for compensation under Section 45 of the Employment Act
  • An employee who does not produce documents such as an M-Pesa statement to prove her pay cannot establish underpayment
  • Overtime claims by live-in domestic employees are difficult to prove as there are no specific working hours

Court orders

#
  1. 1.Accrued leave award of Kshs.18,880.60
  2. 2.Service pay award of Kshs.111,265.00
  3. 3.Total award of Kshs.130,145.60 payable by the respondent
  4. 4.Respondent to pay costs
  5. 5.Interest to accrue from date of judgment

Authorities

#

Legislation

  • Employment ActSection 10(7)
  • Employment ActSection 47(5)
  • Employment ActSection 41
  • Employment ActSection 45
  • Employment ActSection 35(5)
  • General Wages Order1998 to 2015
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (2)

  • Charles Wanjala Watima v Nyali Golf & Country Club Ltd
    [2013] eKLR
  • Mary Nafula Ingati v Ruth Hankel Martha & Another
    [2014] eKLR
Jurisdiction invoked
Employment and labour relations jurisdiction (Employment and Labour Relations Court Act); Employment Act, Cap 226

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Mary Ambogo Odando v Adam Singindura Marjan & another [2020] KEELRC 1076 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1076/eng@2020-05-12

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