Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedNot stated in the judgment· [2023] KEELRC 2714 (KLR)

Nyikuli v Floral Heritage Limited & another (Employment and Labour Relations Cause 1388 of 2016) [2023] KEELRC 2714 (KLR)

Employment and Labour Relations Court of Kenya
19 October 2023
5,047 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ruled a housekeeper's dismissal without notice or a hearing was unfair, awarding her terminal dues, but she lost overtime claims she couldn't prove.

What this practically means

#

Executive summary

#
This was an undefended claim before the Employment and Labour Relations Court in which the Claimant, a housekeeper employed by the 1st Respondent from 1st April 2012 and deployed to the 2nd Respondent's household, alleged that her employment was terminated on 1st March 2016 without notice, grounds or a hearing. She sought a declaration of unfair termination plus terminal dues including notice pay, March 2015 salary, leave, service pay, overtime for Saturdays, Sundays and public holidays, compensation for loss of employment, and underpayments totalling Kshs 651,768. The Respondents never entered appearance and the claim proceeded undefended, but the court emphasized that an undefended claim must still be proved. The court found the Claimant had discharged her burden of establishing the termination, whereupon the burden shifted to the employer, who adduced no evidence. Relying on sections 41, 43, 44 and 45 of the Employment Act, the court held the summary dismissal was both procedurally and substantively unfair. On reliefs, the court awarded one month's notice pay, three years' accrued leave (limited by section 90), service pay (the Claimant not being an NSSF member before 2015), salary underpayments calculated against the applicable Wage Orders under section 48 of the Labour Institutions Act, and six months' gross salary as compensation under section 49(1)(c). The claims for March salary and for overtime and public holiday pay were refused for lack of proof, the court holding that global figures unsupported by specific evidence, or by submissions substituting for evidence, attract no relief. Judgment was entered jointly and severally against the Respondents with costs and a Certificate of Service was ordered.

Key legal issues

#
01

Whether the termination was procedurally fair

Holding

The dismissal was procedurally unfair under sections 41 and 45(2) of the Employment Act as the Claimant was not notified of grounds or heard

Reasoning

Section 41 is couched in mandatory terms and requires an employer to notify and hear an employee before termination on grounds of misconduct, poor performance or incapacity. The Claimant testified she was informed of the termination without any accusations being put to her or a chance to respond; the evidence was unrebutted as the Respondent did not appear or file a defence. The burden of proving adherence to procedural fairness lies on the employer, and the Respondent discharged none of it.

p. 4
02

Whether the termination was substantively justified

Holding

The dismissal was substantively unjustified as the Respondent adduced no evidence of a valid and fair reason

Reasoning

Section 43 places on the employer the burden of proving the reasons for termination, failing which the termination is deemed unfair under section 45(2). The court characterised the termination as a summary dismissal under section 44(3), valid reasons for which must fall within the gross misconduct catalogue in section 44(4) or similar conduct. The Respondent tendered no evidence at all and could not discharge that burden.

p. 6
03

Entitlement to notice pay, leave, service pay, underpayments and compensation

Holding

The Claimant was awarded notice pay, three years' leave, service pay (not being an NSSF member before 2015), salary underpayments per the applicable Wage Orders, and six months' gross salary as compensation under section 49(1)(c)

Reasoning

The contract was terminable by 28 days' notice under section 35, so notice pay was due under section 36. Leave is a statutory right under section 28(1), limited to three years by section 90. Her NSSF statement beginning in 2015 showed she was not an NSSF member from 2012 to 2015, so the section 35(6) exclusion from service pay did not apply for that period. Underpayment flows from section 48 of the Labour Institutions Act, minimum wages being non-contractable. Compensation of six months' gross salary reflected the casual disregard of fair labour practices and her nearly four years of service.

p. 10
04

Whether the overtime and public holiday claims were proved

Holding

The claims for Saturdays, Sundays and public holidays worked failed for lack of specific proof

Reasoning

An employee alleging work on public holidays must identify the specific holidays, and one claiming overtime must establish the hours and when worked; global figures suffer from generalities. Counsel's attempt to supply details in submissions could not cure the evidentiary gap because submissions are not evidence and cannot substitute for pleadings or testimony.

p. 8

Legal principles established

#
  • A failure by a defendant to file a defence does not lessen the claimant's duty to prove her case to the requisite standard
  • Under section 47(5) of the Employment Act the employee bears the initial burden of establishing that termination occurred, whereupon the burden shifts to the employer to justify it
  • Submissions cannot take the place of evidence
  • Minimum wages under a Wages Order cannot be out-contracted; the statutory minimum prevails over any contrary contractual term
  • An employee claiming overtime or public holiday pay must prove the specific days and hours worked; global figures unsupported by evidence attract no relief

Court orders

#
  1. 1.A declaration that the Claimant's termination of employment was unlawful and unfair
  2. 2.Payment of one month's salary in lieu of notice of Kshs 10,954.70
  3. 3.Payment for annual leave accrued in 3 years of Kshs 23,003.40
  4. 4.Payment of service pay of Kshs 21,908.00
  5. 5.Payment of salary underpayment for 3 years of Kshs 38,287.40
  6. 6.Compensation pursuant to section 49(1)(c) of the Employment Act, 2007 of Kshs 65,724.00
  7. 7.Interest on the terminal dues at court rates from the date of judgment until payment in full
  8. 8.The Respondent to bear the costs of the suit
  9. 9.The Respondent to issue the Claimant with a Certificate of Service

Authorities

#

Legislation

  • Employment Act, 2007section 45(2)
  • Employment Act, 2007section 35(1)(c), (5) and (6)
  • Employment Act, 2007section 36
  • Employment Act, 2007section 41
  • Employment Act, 2007section 43
  • Employment Act, 2007section 44
  • Employment Act, 2007section 47(5)
  • Employment Act, 2007section 49(1)(c)
  • Employment Act, 2007section 51
  • Employment Act, 2007section 90
  • Employment Act, 2007section 28(1)
  • Labour Institutions Act, 2007section 48
  • Regulation of Wages (General) (Amendment) Order, 2011minimum wage for house servants
  • Regulation of Wages (General) (Amendment) Order, 2013minimum wage for general labourer/house servant
  • Regulation of Wages (General) (Amendment) Order, 2015minimum wage for general labourer/house servant
  • Retirement Benefits Actnot specified
  • Civil Procedure RulesOrder 17 Rule 2 (now Order 18 rule 2)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure Actsection 1B
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48

Cases cited (9)

  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
  • Linet Akasa Shikoli v Lilian Otundo
    [2014] eKLR
  • Mary Mutanu Mwendwa v Ayuda
    [2013] eKLR
  • Hema Hospital v Wilson Makongo Marwa
    [2015] eKLR
  • Reef Hotel Limited v Josephine Chivatsi
    [2021] eKLR
  • Rogoli Ole Manadiegi v General Cargo Services Limited
    {2016} eKLR
  • Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & Another
    [2014] eKLR
  • Avenue Car Hire & Another v Slipha Wanjiiru Muthegu
    Civil Appeal No. 302 of 1997
  • Muchami Mugeni v Elizabeth Wanjugu Mungara & Another
    Civil Appeal No. 141 of 1998
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (sections 35, 36, 41, 43, 44, 45, 47(5), 49, 51, 90) and the Labour Institutions Act, 2007 (section 48)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Nyikuli v Floral Heritage Limited & another (Employment and Labour Relations Cause 1388 of 2016) [2023] KEELRC 2714 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2714/eng@2023-10-19

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