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ELRCPartially AllowedAppeal No E046 of 2022· [2023] KEELRC 2393 (KLR)

Matoke v Suchak (Appeal E046 of 2022) [2023] KEELRC 2393 (KLR)

Employment and Labour Relations Court
5 October 2023
BMB. O. M. Manani
4,336 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~17 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that firing a house help for absconding without a hearing was unfair, awarding her leave pay, house allowance, overtime, service pay and compensation.

What this practically means

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Executive summary

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This was a first appeal to the Employment and Labour Relations Court from a magistrate's court dismissal of a house help's claim for unfair termination and terminal dues. The Appellant alleged that after being permitted sick leave in July 2019, she was told her services were no longer required and a replacement had been found; the Respondent contended that the Appellant absconded. The trial magistrate dismissed the claim in a two-page decision. Manani J held the trial decision was incomprehensible, lacking coherent analysis of the evidence, consideration of case law, and treatment of the Respondent's concessions. On the merits, the court held that an employer alleging abscondment must nonetheless afford the employee a disciplinary process under section 41 of the Employment Act; the Respondent had not done so, and the termination was therefore irregular. Because the contract, though exceeding two years, was never reduced to writing, the burden of disproving the claimed terminal dues fell on the Respondent under sections 9, 10(7) and 74 of the Employment Act, a position fortified by section 112 of the Evidence Act and the Court of Appeal's decision in Jackson Muiruri Wathigo. The court awarded accrued leave pay (Ksh. 18,200), July 2019 salary (Ksh. 3,466), house allowance at 15% for 27 months (Ksh. 52,650), service pay (Ksh. 13,000), overtime (Ksh. 81,620) and six months' compensation for unfair termination (Ksh. 78,000). The claim for public holiday pay failed for want of particulars. Interest, statutory deductions, a Certificate of Service and costs of both courts were granted.

Key legal issues

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01

Validity of termination for alleged abscondment

Holding

The termination was irregular because the Respondent did not subject the Appellant to the disciplinary process contemplated under section 41 of the Employment Act

Reasoning

The court held that an employer alleging abscondment must seek an explanation from the employee and warn that continued absence may lead to dismissal. The record showed no notification, no request for explanation and no disciplinary session. Therefore, although the Respondent may have had a valid reason, she failed to comply with sections 41, 43 and 45 of the Employment Act, rendering the termination improper.

p. 4
02

Adequacy of the trial court's decision

Holding

The trial magistrate's decision was incomprehensible and lacked coherent analysis, warranting appellate interference

Reasoning

A first appeal requires the appellate court to re-evaluate the entire record while making allowance for not having seen the witnesses. The two-page trial decision disclosed no analysis of evidence, no consideration of case law, and ignored the Respondent's concessions, leaving its findings unsupported by the record.

p. 3
03

Burden of proof for terminal dues on an unwritten contract

Holding

The burden of disproving the claims for leave, house allowance, overtime and related dues lay with the Respondent who failed to reduce the contract to writing and kept no records

Reasoning

Sections 9 and 10 of the Employment Act obliged the employer to reduce the contract into writing and keep records for at least five years; section 10(7) places the burden of proving or disproving disputed terms on the employer where the contract was not written. The Respondent produced no records, so the Appellant's unrebutted versions were accepted.

p. 5
04

Overtime entitlement of a domestic worker

Holding

The Appellant worked 17 hours of overtime per week and was awarded overtime pay computed at one and a half times her hourly rate

Reasoning

The Appellant's unrebutted evidence of working 6.00 am to 5.30 pm Monday to Saturday exceeded the 52-hour maximum under regulation 5 of the Regulation of Wages (General) Order 1982. The court computed 1,020 overtime hours and applied regulation 6 at one and a half times the hourly rate, rejecting the argument that a lightly busy household negates the claim.

p. 7

Legal principles established

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  • An absconding employee does not dismiss himself; the employer must close the contract through a disciplinary process under section 41 of the Employment Act
  • Where a contract of service required to be in writing was not, the burden of proving or disproving the disputed term rests with the employer (section 10(7) Employment Act)
  • Payment above minimum wage is not, absent an express written consolidation, evidence that house allowance was paid

Court orders

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  1. 1.The trial court's decision set aside; a verdict entered that the Appellant's contract of service was improperly and irregularly terminated
  2. 2.Judgment for the Appellant for accrued leave pay of Ksh. 18,200.00
  3. 3.Judgment for the Appellant for salary for eight (8) days worked in July 2019, Ksh. 3,466.00
  4. 4.Judgment for the Appellant for house allowance of Ksh. 52,650.00
  5. 5.Judgment for the Appellant for service pay of Ksh. 13,000.00
  6. 6.Judgment for the Appellant for overtime pay of Ksh. 81,620.00
  7. 7.Compensation for unfair termination of Ksh. 78,000.00 (six months' gross salary)
  8. 8.Interest on the amount awarded at court rates from the date of the trial court's decision till payment in full
  9. 9.The award is subject to the applicable statutory deductions
  10. 10.The Respondent to issue the Appellant with a Certificate of Service
  11. 11.The Appellant granted costs of both the lower court case and this appeal

Authorities

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Legislation

  • Employment Actsections 9(1), 9(2), 10, 10(6), 10(7), 31, 35, 41, 43, 45, 47, 49, 74, 112 (Evidence Act s.112 also cited)
  • Regulation of Wages (General) Orderregulations 5 and 6
  • Evidence Actsection 112
  • ELRC Procedure RulesRule 28(3)

Cases cited (10)

  • Jackson Kaio Kivuva v Penina Wanjiru Muchene
    [2019] eKLR
  • Francis Barasa Lurare & another v Denis Nyongesa Maloba
    [2020] eKLR
  • Freight In Time Limited v Rosebell Wambui Munene
    [2018] eKLR
  • Ayub Kombe Ziro v Umoja Rubber Products Limited
    [2022] eKLR
  • Alice Ndinda John v Birdi Singh
    [2019] eKLR
  • Jackson Muiruri Wathigo t/a Murtown Supermarket v Lilian Mutune
    [2021] eKLR
  • Kenya Union of Domestic Hotels Educational Institutions and Hospital Workers (KUDHEIHA) v Fatuma Mohamed
    [2015] eKLR
  • Njuki V Roche Kenya Limited
    (Cause 311 Of 2019) [2023] KEELRC [1850] (KLR)
  • Vipingo Ridge Limited v Swalehe Ngonge Mpitta
    [2022] eKLR
  • Elizabeth Muthoni Muriithi v Joseph Muchina Muriuki & another
    [2019] eKLR
On appeal from
Magistrates' Court (trial court)
Jurisdiction invoked
First appeal from the trial court in an employment dispute (ELRC appellate jurisdiction)

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, "Matoke v Suchak (Appeal E046 of 2022) [2023] KEELRC 2393 (KLR)", Case Analysis (2023). Appeal No E046 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2393/eng@2023-10-05

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