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ELRCPartially AllowedNot stated in judgment· [2021] KEELRC 632 (KLR)

Felister Ayoti Ambale v Bharat Raval [2021] KEELRC 632 (KLR)

Employment and Labour Relations Court
28 October 2021
1,588 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi court ruled that firing a domestic worker without notice or a hearing was unfair, awarding her over Kshs 165,000 because the employer kept no records.

What this practically means

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Executive summary

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The claimant, employed as a house help from January 2006 until January 2014, sued for unlawful and unfair termination and terminal benefits. She testified that she was dismissed after taking leave in December 2013, being told the respondent's wife no longer wanted her, and that she was never issued an appointment letter, leave, statutory deductions or adequate pay. The respondent (Bharat Raval) claimed she absconded after leave and that he summarily dismissed her, but admitted he kept no written contract or leave records and never remitted NSSF or NHIF. The court held that under Section 74(1) of the Employment Act the employer was obliged to keep records and drew an adverse presumption against him for failing to produce them. It found the termination was a summary dismissal without notice, notice to show cause or a hearing, violating Sections 36, 41, 43 and 45 of the Employment Act, and relied on Alphonse Maghaga Mwachanya v Operation 680 Limited and James Ashiambi Nanay v Menengai Oil Refineries Limited on desertion. Awarding seven months' salary as compensation under Section 49(1)(c) and (4), plus one month's notice pay, service pay under Section 35(5) and house allowance, judgment totalled Kshs 165,773.61 with interest and costs. The underpayment claim failed for want of proof.

Key legal issues

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01

Whether the termination was lawful and fair

Holding

The claimant was summarily dismissed without notice, notice to show cause or a hearing, in breach of Sections 36, 41, 43 and 45 of the Employment Act

Reasoning

The respondent alleged the claimant absconded after leave, yet had no employment records to support his account, including records of leave taken. Section 74(1) obliged him to keep records, and an adverse presumption was drawn against him. The court accepted the claimant's evidence that she was told not to return after leave and was dismissed without notice or hearing, rendering the termination both procedurally and substantively unfair.

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02

Entitlement to compensation and terminal benefits

Holding

Claimant awarded 7 months' salary in compensation, one month's notice pay, service pay and house allowance

Reasoning

Under Section 49(1)(c) and (4) of the Employment Act, the claimant's 7 years of diligent service, clean disciplinary record, lack of notice and unpaid terminal benefits, plus the non-remittance of NSSF and NHIF, were aggravating circumstances justifying the maximum-adjacent award of seven months' salary. Service pay was due under Section 35(5) because no NSSF was paid; house allowance was awarded as she was not housed.

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Claim for underpayments

Holding

Dismissed for want of proof

Reasoning

Although the claimant alleged she was paid below the statutory minimum wage, she did not adduce sufficient evidence demonstrating the shortfall or the applicable minimum wage rates for the relevant period. The burden of proof was not discharged, and the claim for Kshs 77,053.00 in underpayments was therefore dismissed.

p. 3

Legal principles established

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  • An employer has a statutory duty to keep employment records and an adverse presumption arises against an employer who fails to produce them
  • An employer who relies on desertion as a ground for termination must demonstrate attempts made to reach the employee

Court orders

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  1. 1.Kshs 55,411.30 being the equivalent of 7 months' salary in compensation for unlawful and unfair termination
  2. 2.Kshs 7,915.90 in lieu of one month notice
  3. 3.Kshs 27,705.65 being service pay for the period served
  4. 4.Kshs 99,740.76 being unpaid house allowance at 15% of the basic salary
  5. 5.Total award Kshs 165,773.61
  6. 6.Interest at court rates from date of judgment till payment in full
  7. 7.Costs of the suit to the claimant

Authorities

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Legislation

  • Employment Act, 2007Section 74(1)
  • Employment Act, 2007Sections 36, 41, 43 and 45
  • Employment Act, 2007Section 49(1)(c) and (4)
  • Employment Act, 2007Section 35(5)

Cases cited (2)

  • Alphonse Maghaga Mwachanya –vs– Operation 680 Limited
  • James Ashiambi Nanay –vs– Menengai Oil Refineries Limited
    [2016] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment claim)

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, "Felister Ayoti Ambale v Bharat Raval [2021] KEELRC 632 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/632/eng@2021-10-28

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