Janet Kamene Musyoki v Andrew Mulei [2021] KEELRC 681 (KLR)
The bottom line
#A Kenyan court awarded a domestic worker over Ksh.87,000 after her employer failed to prove why she was fired or keep proper employment records.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the termination of the claimant's employment was unfair
- 2.Whether the claimant was underpaid contrary to the Wage Orders
- 3.Whether the claimant is entitled to overtime and public holiday pay
- 4.Whether the claimant is entitled to leave pay for 4 years
- 5.Whether the claimant is entitled to pay for 13 days worked in May 2014
- 6.Whether the claimant is entitled to notice pay
- 7.Whether the claimant is entitled to severance pay
Key legal issues
#Unfair termination of employment
The termination was unfair; the respondent failed to justify the alleged absenteeism or comply with notice, hearing and fairness requirements
Section 47(5) places the burden of justifying termination on the employer. The respondent alleged the claimant absconded but produced no evidence of any action taken - no summary dismissal, warning or show-cause invitation. The court was left with the claimant's account that a wage increase request led to termination, contrary to sections 35, 41 and 45 requiring notice, hearing and fairness. The respondent adduced no evidence.
Underpayment of wages
Underpayment claim of Ksh.37,378.44 justified as the respondent produced no evidence to controvert the wages paid; a house servant's wages were regulated under the Wage Orders and should have included a house allowance
The respondent, as employer, did not file any work records despite the duty to produce records under sections 8, 9 and 10 of the Employment Act. Having not produced evidence to controvert the outline of wages paid, the tabulation of underpayment was found justified. The defence that the claimant was driven home when working overtime confirmed she was not accommodated, so wages should have included a house allowance.
Leave pay
Leave pay awarded for 4 years at 21 days per year based on the last basic wage, totaling Ksh.33,904
There was no evidence that the claimant took her annual leave pursuant to section 28 of the Employment Act. The court computed the entitlement at 21 days each year based on the last basic wage applicable as of 13th May 2014 of Ksh.9,780.95, arriving at Ksh.33,904.
Severance pay
Claim for severance pay declined as no redundancy situation was established
Severance pay under the Employment Act is contingent on a redundancy situation. The claimant's case was one of unfair termination, not redundancy, and no redundancy circumstances were outlined. The claim of Ksh.22,977.20 was therefore declined.
Legal principles established
#- The employer bears the burden of justifying the reason for termination of employment under section 47(5) of the Employment Act
- An employer must issue a written contract of employment and produce employment records in court once suit is filed
- Unfair termination requires notice, hearing and fairness under sections 35, 41 and 45 of the Employment Act
Court orders
#- 1.Judgment entered for the claimant against the respondent
- 2.Notice pay of Ksh. 11,248
- 3.Pay of 13 days worked in May 2014 of Ksh. 4,874
- 4.Leave pay of Ksh. 33,904
- 5.Underpayment of Kshs. 37,378.44
- 6.Costs of the suit to the claimant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, 2007; cause filed as Claim No. 81 of 2015)
Relief refused
#Overtime hours Ksh. 204,647.56
The defence averments that the claimant worked 9AM to 5PM and was paid for overtime and public holidays were not challenged upon service of the response
Public holidays Ksh. 31,725.56
Defence averments that the claimant reported at 10AM on public holidays and was paid Ksh.2,500 were unchallenged
Severance pay for 4 years Ksh. 22,977.20
No redundancy situation was outlined to justify severance pay
Compensation
Notice pay was held to fairly compensate the claimant following unfair termination
Costs
Costs of the suit awarded to the claimant
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Section 47(5) of the Act places the burden of justifying the reason for termination of employment upon the employer.
The court finds there was unfair termination of employment.
Accordingly, judgement is hereby entered for the claimant against the respondent in the following terms;
Issues in the judgment
#Judgment refers to claimant's last wage as Ksh.9,000 in the claim narration but uses Ksh.9,780.95 as the last basic wage in computing leave pay
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Janet Kamene Musyoki v Andrew Mulei [2021] KEELRC 681 (KLR)", Case Analysis (2021). Cause No. 81 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/681/eng@2021-10-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.