Windell v Dzuya (Appeal E066 of 2022) [2023] KEELRC 1260 (KLR)
The bottom line
#Kenya's ELRC ruled that employers without written contracts must accept the worker's version of employment terms and pay full statutory dues.
What this practically means
#Executive summary
#Key legal issues
#Position held by the respondent and the applicable wage
The respondent was a general employee, not a caretaker, gardener or watchman in separate concurrent positions; wages assessed under Wage Orders for a general worker.
There was no written contract, a mandatory employer duty under Section 10 of the Employment Act. Duties were general and not tied to any skill or trade. The trial court's finding that the respondent could not hold multiple positions at once could not be faulted. The respondent remained a general worker protected by Section 37, and any enhanced roles should have been in writing under Sections 10 and 13.
Limitation and the period for assessing underpayments
Underpayments are due for the entire continuous period of employment (December 1, 2002 to July 16, 2019); Section 90 limitation did not bar the claim.
Employment was continuous from 2002 to 2019 and, with the passage of the Employment Act, became protected under Section 37 with entitlement to all terminal dues under Section 18(4). Having filed in good time, the respondent's terminal dues had to be assessed for the whole period. The court then computed year-by-year underpayments against minimum wage orders, totalling Ksh. 166,957.60, correcting the trial court's three-year capping of Ksh. 605,061.
Service pay
Service pay of Ksh. 101,796.75 awarded at 15 days' pay for every full year worked, based on the last wage, because statutory dues (NSSF/NHIF) were not paid.
Refusal to sign NSSF and NHIF forms did not excuse the employer; statutory payment is not subject to mutual consent. Under Sections 35(5) and (6), failure to pay statutory dues attracts service pay at 15 days' wage per full year worked. Using the last wage and 15 full years of service, the court computed Ksh. 6,786.45 x 15 = Ksh. 101,796.75.
Whether the resignation was voluntary (cross-appeal)
The resignation was voluntary; no coercion found, so no compensation for unfair termination.
Michelle Windell's unchallenged evidence was that she wrote the resignation letter as part of a terminal dues package and allowed the respondent time to read it before returning it signed on July 22, 2019. The respondent's conduct in vacating his accommodation and taking the letter away to read was inconsistent with coercion; he made no contemporaneous complaint until filing suit. The trial court's finding of voluntary termination was sound.
Costs (cross-appeal)
Costs in ELRC proceedings are discretionary under Section 12(4) of the ELRC Act; the trial court's order that each party bear own costs could not be disturbed absent a showing of judicial failure in exercising discretion.
The respondent submitted no matter of wrong application of the trial court's discretion on costs. The appellate court therefore left the trial court's costs finding intact, ordering each party to meet own costs. Payments already made (Ksh. 85,000 in severance and half month's salary) were also directed to be offset against the dues.
Legal principles established
#- Failure to issue a written contract of employment, a mandatory duty of the employer under Section 10 of the Employment Act, leaves the court bound to believe the employee's word as to the terms of employment.
- An employee undertaking general duties without a written contract is a general worker whose wages are assessed under the applicable Wage Orders, and cannot claim multiple concurrent positions.
- Where employment is continuous, assessment of terminal dues must cover the entire period of employment and is not defeated by the limitation in Section 90 of the Employment Act.
- Non-payment of statutory dues (NSSF/NHIF) is not subject to mutual consent, and an employer who fails to pay such dues is sanctioned by payment of service pay at 15 days' wage per full year worked.
Court orders
#- 1.The respondent was a general employee of the appellant
- 2.Employment was from December 1, 2002 to July 16, 2019, a period of 15 full years
- 3.Underpayments are due for the entire period of employment all at Ksh. 166,957.60
- 4.Service pay is awarded at Ksh. 101,796.75
- 5.These dues shall be paid less statutory deductions in terms of Section 49(2) of the Employment Act, 2007
- 6.The dues above shall be paid less Ksh. 85,000 already received by the respondent
- 7.Each party shall meet own costs
- On appeal from
- Chief Magistrate's Court, Mombasa (ELRC)
- CM ELRC No. 788 of 2019
- Jurisdiction invoked
- First appellate jurisdiction of the Employment and Labour Relations Court over appeals from the magistrates' court (Employment and Labour Relations Court Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Windell v Dzuya (Appeal E066 of 2022) [2023] KEELRC 1260 (KLR)", Case Analysis (2023). Mombasa ELRC Appeal (from Mombasa CM ELRC No. 788 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1260/eng@2023-05-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.