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ELRCPartially AllowedNot stated in judgment (Statement of Claim dated 16th May 2018)· [2023] KEELRC 2194 (KLR)

Kaiga v Das (Employment and Labour Relations Claim 2 of 2023) [2023] KEELRC 2194 (KLR)

Employment and Labour Relations Court
22 September 2023
JKJemimah Keli
3,358 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court awarded a house help Kshs 182,952 after her employers denied employing her, warning that even gross misconduct dismissals require a hearing.

What this practically means

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Executive summary

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The claimant, a former domestic worker represented by the Kenya National Union of Domestic Workers, sued Mr and Mrs Anup Das claiming Kshs 433,787.34 for alleged unfair and unlawful summary termination on 24th November 2017, together with interest and costs. The respondents denied ever employing her. The court framed three issues: existence of an employment relationship, fairness of the termination, and entitlement to reliefs. On the first issue, the court held the employment relationship is primal to any employment claim and to the court's jurisdiction under Article 162(2)(b) and section 12 of the ELRC Act. Relying on the claimant's specific testimony and the uncontroverted affidavit of Samson Amulaku Eshikumo - whom the respondents failed to apply to cross-examine under Order 19 Rule 2 - the court found on a balance of probabilities that an employment relationship existed. On the second issue, the court found the reason for termination (absconding duty) was valid under section 44 of the Employment Act, but that procedural fairness under section 41 was not proved; it held procedure is mandatory even in summary dismissal, and, noting the uniqueness of domestic employment, awarded one month's notice pay as adequate compensation. On reliefs, the court limited underpayment to 2016-2017 (only the 2016 wage order having been produced), awarded three years' unpaid house allowance at 15% of basic salary, and service pay for six years under section 35(5). Judgment was entered against the respondents jointly and severally for Kshs 182,952.13, with interest at court rates if unpaid within 30 days, a 30-day right of appeal and a 30-day stay. The claim otherwise failed on the declaratory relief and the full quantum sought.

Key legal issues

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01

Existence of employment relationship

Holding

On a balance of probabilities there was a past employer-employee relationship between the claimant and the respondents

Reasoning

The burden of proving the employment relationship lay on the claimant. She gave specific evidence of residences, dates and salary progression, and relied on an uncontroverted affidavit of a witness who saw her working as house help and the instructions to security not to allow her entry after termination. The respondents' bare denial was insufficient; the affidavit evidence stood uncontroverted as the respondents never applied to cross-examine the deponent.

p. 5
02

Validity of the reason for termination

Holding

The reason for termination - absconding duty - was valid

Reasoning

The claimant's own evidence disclosed she absconded work the previous day, which led to the termination. Absconding of duty is a ground for summary termination under section 44 of the Employment Act. The respondents, having denied the employment, led no evidence on the termination.

p. 6
03

Procedural fairness of the termination

Holding

The termination was procedurally unfair because there was no proof of a hearing; the remedy was one month's notice pay

Reasoning

Sections 45 and 41 of the Employment Act require the employer to prove a valid and fair reason and a fair procedure, including hearing the employee before termination even for gross misconduct. There was no proof of hearing. Noting the unique nature of domestic employment in a household, the court found notice pay of one month's salary adequate compensation for the procedural unfairness.

p. 6
04

Entitlement to reliefs - underpayment, house allowance and service pay

Holding

Underpayment limited to 2016-2017 (Kshs 55,810.65), house allowance limited to 3 years (Kshs 65,435.58), and service pay for 6 years (Kshs 38,779.35) awarded

Reasoning

Only the 2016 wage order was produced, so underpayment could apply only for 2016 and 2017 (difference between Kshs 12,926.55 minimum wage and Kshs 10,500 paid, over 23 months). House allowance at 15% of basic salary was uncontroverted but limited to three years. Service pay at 15 days per year worked was payable under section 35(5) in the absence of NSSF, pension, gratuity or provident fund contributions.

p. 7

Legal principles established

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  • The existence of an employer-employee relationship is foundational to the court's jurisdiction and to any employment claim
  • Evidence may be given by affidavit under Order 19 of the Civil Procedure Act; where a party does not apply to cross-examine the deponent, the affidavit stands as uncontroverted evidence
  • Procedural fairness under section 41 is mandatory even where summary dismissal for gross misconduct is contemplated

Court orders

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  1. 1.Award Notice Pay Kshs 12,926.55
  2. 2.Award Underpayment of wages awarded at Kshs 55,810.65/-
  3. 3.Award unpaid house allowance award of Kshs 65,435.58/-
  4. 4.Award Service pay for Kshs 38,779.35
  5. 5.Costs assessed by court for reasonable disbursements payable to the claimant of Kshs 10,000/-
  6. 6.Total award to the claimant of Kshs 182,952.13 against the respondents jointly and severally
  7. 7.If the amount awarded is not paid in full in 30 days of the judgment, interest to apply at court rate from date of judgment until payment in full
  8. 8.Right of appeal in 30 days
  9. 9.Stay of 30 days

Authorities

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Legislation

  • Constitution of KenyaArticle 162(2)(b)
  • Employment and Labour Relations Court ActSection 12
  • Employment ActSections 41(1), 41(2), 42(1), 43, 44, 45(1), 45(2), 47(5), 35(5), 35(6)
  • Civil Procedure ActOrder 19, Rule 2
  • National statutory minimum wages circular / Wage Order2016 minimum wages for Nairobi house helps

Cases cited (7)

  • Kenya Union of Commercial Food and Allied Workers v Mwana Black Smith limited
    (2013) eKLR
  • Joseph Munene Murage v Salome Ndung'u
    (2019)
  • Mary Mmbone Mbayi v Chandubhai Patel & another
    Industrial Cause No. 761 of 2011
  • Khen Kharis Mburu & another v James Karong Ng'ang'a & another
    [2021] eKLR
  • G G R v H-P S
    [2012] eKLR
  • Baby v Sekar
    Petition M.P No 1 of 2014 (2 December 2014)
  • Pius Machafu Isindu v Lavington Security Guards Limited
    [2017] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution and section 12 of the Employment and Labour Relations Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (9)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kaiga v Das (Employment and Labour Relations Claim 2 of 2023) [2023] KEELRC 2194 (KLR)", Case Analysis (2023). Not stated in judgment (Statement of Claim dated 16th May 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2194/eng@2023-09-22

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