Mary Ambogo Odando v Adam Singindura Marjan & another [2020] KEELRC 1076 (KLR)
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
#Key legal issues
#Who was the claimant's employer and from what date
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
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.
Whether employment was unfairly terminated
No unfair termination proved; the separation resembled a mutual parting or retirement due to the claimant's advanced age
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.
Entitlement to accrued leave
Awarded accrued leave of Kshs.18,880.60 for the period employed by the 2nd respondent (January 2010 to December 2014)
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.
Entitlement to service pay
Service pay of Kshs.111,265 awarded under Section 35(5) of the Employment Act, computed for 33 years
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.
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.Accrued leave award of Kshs.18,880.60
- 2.Service pay award of Kshs.111,265.00
- 3.Total award of Kshs.130,145.60 payable by the respondent
- 4.Respondent to pay costs
- 5.Interest to accrue from date of judgment
- 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.