Salim v Oyola (Appeal E017 of 2023) [2023] KEELRC 2842 (KLR)
The bottom line
#Paying someone's wages makes you their employer in Kenya, and courts will award back pay when no employment records exist.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether an employment relationship existed between the appellant and the respondent
- 2.Whether the trial court erred in finding unfair termination of employment on an unpleaded basis
- 3.Whether the respondent's claims for underpayment and service pay were time-barred
- 4.What terminal dues and underpayments the respondent is entitled to, and whether costs and interest were justified
Key legal issues
#Existence of employment relationship
Employment relationship existed between the parties; the appellant, who paid the wages, was the employer as agent/principal under the Employment Act
The respondent worked in the appellant's parents' house but the appellant paid her monthly wages. The definition of employer under the Act includes an agent of the principal. The appellant offered mere denials and no employment records showing employment by the deceased father, the mother, or wage payment by the brother. The payment of wages could not extricate the appellant from the employment relationship.
Unpleaded finding of unfair termination
The trial court erred in finding unfair termination when the respondent's claim was for terminal dues after resignation due to illness
The respondent pleaded that she left employment due to illness and sought terminal dues. The trial court's general finding of unfair termination and blanket award of all pleaded claims went beyond the pleadings and denied parties reasons for each award, necessitating a fresh assessment on appeal.
Limitation on underpayment claims
Underpayments, as terminal dues, are claimable within 3 years of cessation of employment; they are not confined to the 12-month continuing injury window
Section 90 of the Employment Act allows claims for unpaid dues within 3 years where the cause arises at the end of employment. The German School Society authority confirms the three-year rule subject to 12 months for continuing injuries. Employment ended in November 2020, and the claims were within time.
Quantum of underpayment and service pay
Service pay of Kshs. 33,932.25 and underpayments of Kshs. 152,892.20 awarded based on the applicable Wage Order of Kshs. 13,572.90 per month
The appellant produced no employment records to rebut the respondent's evidence of wages, which was therefore accepted. The applicable basic wage for a house help in Mombasa was Kshs. 13,572.90; service pay computed at 15 days' pay per year for 5 years, and underpayments computed per period.
Legal principles established
#- Payment of wages by a party within a family setting evidences agency and cannot negate an employment relationship with that party
- Upon cessation of employment, an employee may claim terminal dues and underpayments within 3 years under Section 90 of the Employment Act, distinct from continuing injuries which must be claimed within 12 months
- A general award of all pleaded claims without assessment and reasons is erroneous; each claim must be analysed and allocated
Court orders
#- 1.Review of judgment in Mombasa CMELRC No. E267 of 2021 in the following terms: Service pay Kshs. 33,932.25
- 2.Underpayments Kshs. 152,892.20
- 3.Costs of the suit before the lower court and this appeal to the respondent
- 4.Interests on the awards from the date of judgment of the lower court and until paid in full
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Magistrates' Court (ELRC), Mombasa
- CMELRC No. E267 of 2021
- Jurisdiction invoked
- First appellate jurisdiction over employment claims from subordinate courts; Employment Act, 2007 and Employment and Labour Relations Court Act, 2011
Relief refused
#Claim for compensation for work during public holidays (Kshs. 31,200)
General claim without particulars of specific public holidays worked
Finding of unfair termination and general award of all pleaded claims
Claim was for terminal dues on termination by the respondent due to illness; unfair termination was not pleaded and the general award lacked reasons
Costs
Costs of the suit before the lower court and this appeal to the respondent; interests on the awards from the date of the lower court judgment until paid in full
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.
The intricate connectedness of the appellant to the respondent’s employment and particularly the payment of wages cannot extricate the appellant from the employment relationship.
An employee cannot be denied any lawful dues arising out of the employment relationship if such claims are addressed within the limitation period of 3 years after cessation of employment.
The trial court ought to have assessed all the claims made and rendered reasons for the awards made.
Accordingly, judgment in Mombasa CMELRC No. E267 of 2021 is hereby reviewed in the following terms;
Issues in the judgment
#The judgment refers to the appellant's submissions both attacking and defending the finding on underpayments, and includes a passage reading as if for the respondent; the role labels of some submissions are internally inconsistent
Paragraph 9 on limitation states claims ought to have been addressed 'within 12 years' which appears to be a typographical error for 12 months
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Salim v Oyola (Appeal E017 of 2023) [2023] KEELRC 2842 (KLR)", Case Analysis (2023). Mombasa CMELRC No. E267 of 2021 (appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2842/eng@2023-11-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.