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ELRCPartially AllowedCause E014 of 2025

Ceciliah Kavutha Ngomba v The Majlis Lamu Limited aka Majlis Manda Island Resort Limited

Employment and Labour Relations Court of Kenya
25 September 2026
10,044 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~40 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled a 'consultant' spa therapist was actually an employee, awarding her over Kshs. 2.1 million for unfair pay cuts and termination.

What this practically means

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Executive summary

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The Claimant, a spa therapist at the Respondent's Manda Island resort from June 2019 to February 2025, sued claiming she was an employee paid 30% commission plus 2% service charge, whose pay was unilaterally cut to 20% in November 2021 on the strength of a pandemic-era promise of reimbursement, and who was verbally and unfairly terminated in February 2025 after persistently demanding the withheld sums. The Respondent denied employment, asserting she was a commission-only independent consultant who resigned voluntarily. The court framed four issues and answered them for the Claimant. Applying the economic reality test, it held the label 'consultant' was not decisive: the Respondent's premises, tools, clients, fixed prices, control, uniform, meals and accommodation, its own description of her as an employee, and its plea that she 'resigned' all pointed to employment; commission was merely a computational formula for wages. The Respondent failed to prove resignation; a tick of unexplained authorship on a uniform handover form was insufficient. The termination was substantively unfair (no reason advanced) and procedurally unfair (no section 41 process). The wage reduction breached sections 10(5), 13 and 17 and Article 41; the Claimant's continued work under protest, in reliance on a reimbursement promise, was neither acquiescence nor waiver. The claim was not time-barred, underpayment being a continuing injury. The court awarded Kshs. 2,136,617.91 (withheld wages, service charge, notice pay and four months' compensation), computed conservatively on the lower of the parties' monthly figures, plus interest, a certificate of service, and costs to the Claimant.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.What was the nature of the relationship between the Claimant and the Respondent: was it a contract of service or a contract for service?
  2. 2.If the Claimant was an employee, was her employment terminated by the Respondent, and if so, was the termination fair?
  3. 3.Was the reduction of the Claimant's remuneration from 30% to 20% and the withdrawal of the 2% service charge lawful, and did the Claimant, by her conduct, acquiesce in the reduction and waive her right to pursue it?
  4. 4.What reliefs, if any, is the Claimant entitled to?

Key legal issues

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01

Nature of the relationship: contract of service or contract for service

Holding

The Claimant was an employee under an oral contract of service from 18th June 2019; the Respondent failed to discharge the burden of proving she was an independent consultant.

Reasoning

Applying the economic reality/multiple test, the court weighed the Respondent's premises and tools, its clients and fixed prices, its control and integration of the Claimant, her uniform, meals and accommodation, its own description of her as an employee, its plea that she 'resigned', and her lack of financial risk. Commission-based pay was a mere computational formula. No single factor is decisive; the Respondent's evidence was thin and internally inconsistent.

p. 10
02

Whether the employment was terminated and whether the termination was fair

Holding

The Respondent terminated the employment; the termination was both substantively and procedurally unfair.

Reasoning

The Respondent bore the burden of proving resignation; a tick on a uniform handover form of unexplained authorship is not a clear and unequivocal act of resignation, and Edward's WhatsApp message postdated the demand letter. Having denied terminating the Claimant, the Respondent advanced no reason, failing sections 43 and 45, and complied with none of the mandatory procedural requirements of section 41.

p. 12
03

Lawfulness of the wage reduction and withdrawal of service charge; acquiescence and waiver

Holding

The reduction from 30% to 20% and withdrawal of the 2% service charge were unlawful; the Claimant neither acquiesced nor waived her claim.

Reasoning

Sections 10(5), 13 and 17 of the Employment Act and Article 41(2)(a) are mandatory; variation of a fundamental term requires consultation and consent. The Claimant protested continuously and worked on in reliance on a promise of reimbursement. No detrimental reliance by the Respondent; acceptance of part payment under protest is not waiver. The 2% service charge was part of agreed remuneration, the Respondent failing to disprove it under section 10(7).

p. 12
04

Limitation of the arrears claim

Holding

The claim was not time-barred; underpayment was a continuing injury and suit was filed within twelve months of cessation.

Reasoning

Section 90 of the Employment Act allows three years for actions arising from the Act, or twelve months after cessation for continuing injury. The underpayment recurred monthly until employment ended in February 2025; suit filed August 2025 was within time. The court raised this suo motu as limitation goes to jurisdiction.

p. 14
05

Quantum of reliefs

Holding

Notice pay of Kshs. 83,850 as pleaded; withheld wages of Kshs. 1,412,506.59 and service charge of Kshs. 282,501.32 computed on the lower of the parties' monthly figures; four months' gross wages (Kshs. 357,760) as compensation; certificate of service.

Reasoning

To avoid double reward and confine the award to pleadings, the court adopted the lower of the Respondent's and Claimant's monthly figures, used the Claimant's CK.2 figure for 16th–28th November 2021, and made no award for months with nil figures. Compensation under section 49(1)(c) considered length of service, best-performer status, non-contribution, and the aggravating link to her wage claims.

p. 15

Legal principles established

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  • The label parties attach to a relationship is not conclusive; employee status is determined by the substance of the relationship as it actually operated.
  • Remuneration by commission or percentage of revenue is a recognised mode of paying employees and is not, without more, a badge of independent contracting.
  • An employer cannot rely on its own statutory default (failure to deduct and remit, or failure to reduce the contract to writing) as proof that the worker was not an employee.
  • A unilateral reduction of wages without consultation and consent is not a variation of the contract but a breach of it, entitling the employee to recover the difference.
  • An employee's continued work at reduced pay is not, without more, acceptance of the reduction or a waiver of wages already earned, given inequality of bargaining power.
  • Underpayment of wages is a continuing injury under section 90 of the Employment Act; time runs from cessation of employment.

Court orders

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  1. 1.Declaration that the Claimant was an employee of the Respondent from 18th June 2019 until February 2025, and that the termination of her employment was substantively and procedurally unfair
  2. 2.Respondent to pay withheld wages (10%) of Kshs. 1,412,506.59 for 16th November 2021 to 15th February 2025
  3. 3.Respondent to pay unpaid service charge (2%) of Kshs. 282,501.32 for the same period
  4. 4.Respondent to pay one month's wages in lieu of notice of Kshs. 83,850.00
  5. 5.Respondent to pay compensation for unfair termination of four months' gross wages, Kshs. 357,760.00
  6. 6.Sums awarded subject to statutory deductions, if any, applicable in law
  7. 7.Interest at court rates on the withheld wages and service charge from the date of filing suit, and on the rest of the sums from the date of judgment, until payment in full
  8. 8.Respondent to issue a certificate of service under section 51 of the Employment Act within thirty (30) days of the judgment
  9. 9.Respondent to bear the costs of the suit

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Section 12 of the Employment and Labour Relations Court Act, anchored on the existence of an employment relationship

Relief refused

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Interest on withheld wages and service charge from the date each payment fell due

Court considered it just that interest run from the date of filing suit given the reconciliation of figures it undertook

p. 16

Maximum compensation of twelve months' gross wages (Kshs. 1,006,200.00) sought

Court awarded four months' gross wages instead, considering length of service, non-contribution, and that withheld sums had been awarded

p. 16

Claimant's pleaded figures for the 10% differential and 2% service charge in full

Computation adopted the lower of the parties' monthly figures and excluded the unpleaded first half of November 2021

p. 15

Costs

The Respondent shall bear the costs of the suit (costs follow the event; the Claimant substantially succeeded).

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

A relationship that bears all the hallmarks of employment does not cease to be one because it is called a "consultancy", and the Court's duty is to pierce the veil of the label and ascertain the true relationship between the parties.
p. 5Substance over label in employment status
Counsel owe the Court a duty to cite authorities accurately and for what they actually decide.
p. 6Duty of accurate citation
If the failure to accord an employee statutory benets were proof that the worker was not an employee, the most delinquent employers would be the best insulated from liability.
p. 9Employer default cannot defeat employee status
A communication is not a consultation, and a consultation is not a consent. To announce a decision already made is not to consult about it.
p. 12Unilateral wage variation
Acceptance of part payment of wages under protest is not a waiver of the balance.
p. 14Waiver
A tick on a uniform handover form, whose authorship is unexplained, cannot be elevated into a clear and unequivocal act of resignation.
p. 10Proof of resignation
In the upshot, judgment is entered for the Claimant against the Respondent in the following terms
p. 17Disposition
The Respondent shall issue the Claimant with a certicate of service in terms of section 51 of the Employment Act within thirty (30) days of this judgment
p. 17Final orders
The Respondent shall bear the costs of the suit. It is so ordered.
p. 17Costs and closing order

Issues in the judgment

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minor

Schedule column 'Shortfall at 12%' is unexplained in the judgment text, which awards 10% plus 2% applied to the same gross figure

minor

Coram prints 'K OCHARO, J' but the signature block reads 'OCHARO KEBIRA, JUDGE'

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, "Ceciliah Kavutha Ngomba v The Majlis Lamu Limited aka Majlis Manda Island Resort Limited", Case Analysis (2026). Cause E014 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2588/eng@2026-09-25

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