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ELRCPartially AllowedMombasa ELRC Appeal from CMELRC No.629 of 2022· [2024] KEELRC 2403 (KLR)

Mustafa v Mwagandi (Appeal E031 of 2024) [2024] KEELRC 2403 (KLR)

Employment and Labour Relations Court
1 October 2024
3,100 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a first appeal to the Employment and Labour Relations Court at Mombasa against the judgment of the trial magistrates' court delivered on 9 February 2024 in Mombasa CMELRC No.629 of 2022. The respondent claimed she was employed from 1994 as a seamstress by the family matriarch, Parin Sameja, at wages later rising to Ksh.12,000 monthly, continuing with the family after the matriarch's death in 2018 until her dismissal on 31 January 2022 without notice or terminal dues. The appellant denied an employment relationship, asserting only occasional engagements, and pleaded limitation under Section 90 of the Employment Act. The trial court found an employment relationship protected under Section 37(1) of the Employment Act, unfair termination, and awarded notice pay, underpayments, house allowance, four months' compensation, service pay, leave was refused, certificate of service and costs. On appeal, the court reaffirmed the trial court's finding of an employment relationship, holding that an employer includes an agent or factor of such person and the appellant, having enjoyed the respondent's services, could not extricate himself. However, since there was no written contract, dues were to be computed on statutory minimum wages for a general worker plus 15% house allowance. The court varied the awards: compensation Ksh.62,431.60; notice pay Ksh.15,607.90; underpayment and house allowance Ksh.154,494.70; leave pay Ksh.14,930.19; service pay Ksh.210,906.65; certificate of service. Each party was ordered to bear its own costs of the appeal, with the trial court's costs award undisturbed.

Key legal issues

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01

Existence of an employment relationship

Holding

An employment relationship existed between the respondent and the appellant despite employment having originated with the deceased matriarch

Reasoning

The appellant admitted in pleadings and submissions that the respondent was employed by his mother, the family matriarch, who died in 2018, and that the respondent continued to be engaged in domestic duties by the family including the appellant, paid via Mpesa or cash. Under Section 2 of the Employment Act an employer includes an agent or factor of such person, so the appellant, having enjoyed her services, could not extricate himself from the relationship.

p. 5
02

Applicability of Section 37 conversion protections

Holding

The trial court's finding that the respondent was engaged continuously and protected under Section 37 of the Employment Act could not be faulted

Reasoning

The trial court found the respondent was engaged continuously on work not likely to be completed within a day, attracting Section 37 protections and the rights and benefits under the Employment Act, including notice before termination and terminal dues. The appellate court found this analysis could not be faulted.

p. 5
03

Assessment of terminal dues without a written contract

Holding

Dues are to be computed on the statutory minimum wage with 15% house allowance, not the claimed wage; several awards were varied downward

Reasoning

With no written contract and no certification as a seamstress, the wage due is the published minimum wage for a general worker. Computing underpayments and house allowance from May 2017 onward, the court arrived at Ksh.154,494.70; compensation was re-based to Ksh.15,607.90 monthly for four months; leave pay limited to 33 days; service pay computed at 15 days per year over 27 years.

p. 5
04

Leave pay claim for 27 years

Holding

Leave pay limited to 33 days' entitlement as the respondent did not demonstrate efforts to take annual leave

Reasoning

Under Section 90 read with Section 28(4) of the Employment Act, accumulation of leave should not exceed 18 months. The employee must apply for leave and, where denied, may claim it as a continuing injury. The respondent did not demonstrate efforts to take her leave, so only 33 days were allowed.

p. 6

Legal principles established

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  • An employer under the Employment Act includes the agent, manager or factor of such person; one who enjoys the services of an employee cannot escape the employment relationship
  • A first appellate court must review and re-evaluate the entire record while bearing in mind the trial court's advantage of observing witness demeanour
  • Without a written contract, the applicable wage is the statutory minimum wage
  • Accumulation of leave days should not go beyond 18 months and unclaimed leave is limited accordingly

Court orders

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  1. 1.Declaration that there was an employment relationship between the parties
  2. 2.Declaration that employment was terminated unfairly
  3. 3.Compensation awarded at Ksh.62,431.60
  4. 4.Notice pay Ksh.15,607.90
  5. 5.Underpayment of wages and house allowance Ksh.154,494.70
  6. 6.Leave pay Ksh.14,930.19
  7. 7.Service pay Ksh.210,906.65
  8. 8.Certificate of service to be issued
  9. 9.Each party to bear its own costs of the appeal; trial court costs award to remain

Authorities

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Legislation

  • Constitution of KenyaArticle 50
  • Employment ActSection 2
  • Employment ActSection 28(4)
  • Employment ActSection 35(5) and (6)
  • Employment ActSection 37(1) and 37
  • Employment ActSection 47(5)
  • Employment ActSection 90

Cases cited (7)

  • Apex International Limited & Anglo-leasing and Finance International Limited v Kenya Anti-Corruption Commission
    [2012] eKLR
  • Martha Wangari Karua v IEBC
    Nyeri Civil Appeal No.1 of 2017
  • Samuel Wambugu Ndirangu v 2NK Sacco Society Limited
    [2019] eKLR
  • Kenya Union of Commercial Food & Allied Workers v Mwana Black Smith Limited
    [2013] eKLR
  • Kenya Hotels & Allied Workers Union v Alfajiri Villas (Magufa Limited)
    [2014] eKLR
  • Rashid Mazuri Ramadhani & 10 Others v Doshi & Company (Hardware) Limited & another
    [2018] eKLR
  • Mbogo and Another v Shah
    [1968] EA 93
On appeal from
Mombasa CMELRC
No.629 of 2022
Jurisdiction invoked
First appellate jurisdiction over the trial magistrates' court (ELRC appeal)

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, "Mustafa v Mwagandi (Appeal E031 of 2024) [2024] KEELRC 2403 (KLR)", Case Analysis (2024). Mombasa ELRC Appeal from CMELRC No.629 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2403/eng@2024-10-01

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