Wanjala v Onguka

Proceedings Before Court 6. The Claimant states in her written submissions that summons and the Statement of Claim were duly served upon the Respondent but that he neither entered appearance nor led a response. The matter consequently proceeded undefended. 7. The absence of a defence does not, however, relieve a claimant of the legal and evidentiary burden of proving the claim. An undefended claim is not automatically successful merely because the allegations have not been controverted. Issues for Determination 8. I have considered the pleadings, witness statement, documentary evidence and the Claimant's written submissions. The issues arising for determination are: a. Whether an employment relationship existed between the parties; b. Whether any part of the claim is aected by limitation under section 90 of the Employment Act; c. Whether the termination of the Claimant's employment was substantively and procedurally fair; d. Whether the Claimant is entitled to the remedies sought; and e. Who should bear the costs of the suit. Employment Relationship 9. The Claimant's evidence is that the Respondent employed her on 1st January 2016 as a house help at a monthly salary of Kshs. 10,000. The Claimant also produced ltered M-Pesa statements showing numerous receipts from a person identied as Andrew Onguka. Those transactions are consistent with the nancial relationship described by the Claimant. 10. The Claimant's List of Documents identies her identity document, M-Pesa records, wage orders and the demand letter among the material relied upon. The Respondent tendered no evidence contradicting the Claimant's testimony. 11. I therefore nd, on a balance of probabilities, that an employment relationship existed between the parties and that the Claimant worked for the Respondent as a house servant/house help from 1st January 2016 until 1st November 2025. Limitation 12. Before considering the individual monetary claims, it is necessary to address limitation. Section 90 of the Employment Act provides a special limitation regime for claims arising out of contracts of service. An ordinary cause of action must be commenced within three years of the act, neglect or default complained of. In the case of a continuing injury, proceedings must be commenced within twelve months after cessation of the continuing injury. 13. The Claimant's employment terminated on 1st November 2025 and this suit was led on 19th December 2025. The cause of action challenging the termination itself was therefore instituted well within the statutory period. The diculty concerns claims such as underpayment, house allowance and similar recurring employment entitlements extending over several years. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/845/eng@2026-08-27 2

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14. In Patel v Muli [2026] KEELRC 46 (KLR), the Employment and Labour Relations Court at Mombasa held that underpayment constitutes a continuing injury for purposes of section 90 and that recovery is limited to the twelve-month period preceding cessation of employment. The Court relied on Bakery Confectionery Food Manufacturing & Allied Workers Union (K) v Wrigley Company (East Africa) Limited & another [2025] KECA 2021 (KLR). 15. I am guided by that approach. Consequently, although the Claimant worked for the Respondent for approximately ten years, she cannot recover continuing monetary injuries indenitely back to 2016 merely because the employment relationship continued. Each head of claim must therefore be examined separately within the applicable statutory limitation framework. Fairness of the Termination Substantive Justication 16. Section 43 of the Employment Act places upon an employer the burden of proving the reason for termination. Section 45 requires the reason to be valid and fair. 17. The Claimant's uncontroverted evidence is that she received a text message on 1st November 2025 informing her that her services were no longer required. No reason was supplied and she was never recalled to work. No evidence has been placed before Court of misconduct, incapacity, poor performance, redundancy or any other reason capable of justifying termination. 18. The Claimant relied on Walter Ogal Anuro v Teachers Service Commission [2013] eKLR, in which the Court emphasized that a lawful termination must satisfy both substantive justication and procedural fairness. I therefore nd that the Respondent failed to demonstrate a valid or fair reason for terminating the Claimant’s employment. Procedural Fairness 19. Section 41 of the Employment Act requires procedural fairness before termination on grounds related to an employee's conduct, capacity or compatibility. 20. There is no evidence that the Claimant was summoned to a disciplinary meeting, informed of any complaint against her, aorded an opportunity to respond or otherwise heard before termination. Her evidence is that termination was communicated abruptly by text message. I nd that the procedure adopted by the Respondent did not satisfy the requirements of section 41. 21. Accordingly, the termination of the Claimant's employment on 1st November 2025 was substantively and procedurally unfair within the meaning of sections 41, 43 and 45 of the Employment Act. Remedies 22. One month's salary in lieu of notice- The Claimant seeks one month's salary in lieu of notice. The Claimant was a monthly-paid employee and was therefore entitled to notice under section 35(1)(c) of the Employment Act. No notice was given. 23. The wage material produced shows that under the Regulation of Wages (General) (Amendment) Order, 2022, the applicable basic minimum monthly wage for a general labourer, including a house servant, within Mombasa was Kshs. 15,201.65. I therefore award the Claimant: Kshs. 15,201.65 as one month's salary in lieu of notice. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/845/eng@2026-08-27 3

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24. Underpayment of wages- The Claimant pleaded underpayment from 2016 until October 2025. Her pleadings contain several arithmetical inconsistencies. For example, the period May 2018 to April 2022 was calculated using only twelve months, while for May 2022 to October 2025 the pleaded monthly dierential was Kshs. 5,201.65 but a dierent gure was used in the multiplication. Those inconsistencies notwithstanding, the 2022 Wage Order produced by the Claimant establishes an applicable minimum monthly wage of Kshs. 15,201.65, whereas her actual wage was Kshs. 10,000. The monthly shortfall was therefore: Kshs. 15,201.65 – Kshs. 10,000 = Kshs. 5,201.65. Underpayment is a continuing injury. Following Patel v Muli, recovery is limited to the nal twelve months of the employment relationship. The recoverable underpayment is therefore: Kshs. 5,201.65 × 12 months = Kshs. 62,419.80. The balance of the historical underpayment claim extending beyond the permissible period is statutebarred. 25. Annual leave- The Claimant's evidence is that she was never granted annual leave. Section 28(1) of the Employment Act guarantees an employee not less than 21 working days of annual leave after every twelve consecutive months of service. Section 74 of the Act places upon the employer the obligation to keep leave records. The Respondent produced no records demonstrating that the Claimant took her annual leave. The Claimant would therefore ordinarily be entitled to accrued leave. However, annual leave cannot accumulate indenitely. Section 28(4) provides that the remainder of annual leave must be taken not later than eighteen months from the end of the leave-earning period. The Court of Appeal in Bins (Nairobi) Services Limited v Hardard Macharia Kariamburi [2025] KECA 1726 (KLR) armed that section 28(4) circumscribes the period within which annual leave may be carried forward. More recently, in Patel v Muli, the Court held that leave could not accumulate beyond 18 months and consequently restricted recovery to 33 leave days. I adopt the same approach. The daily rate appearing in the 2022 Wage Order produced by the Claimant for the relevant category within Mombasa is Kshs. 731.50. Accordingly: 33 days × Kshs. 731.50 = Kshs. 24,139.50. 26. Pro-rata leave- The Claimant's employment terminated on 1st November 2025 before completion of the nal twelve-month leave-earning period. Section 28(1)(b) provides for pro-rata leave where employment terminates after completion of two or more months of a leave-earning period. The Claimant specically pleaded Kshs. 7,315 under this head. Although the computation in the pleading is not particularly clear, the sum claimed does not exceed the entitlement that would arise from the period worked in 2025. A Court cannot award more than was pleaded merely because the statutory computation could yield a higher gure. I therefore award Kshs. 7,315 as pro-rata leave. 27. Public holidays- The Claimant seeks Kshs. 65,835 for work allegedly performed during public holidays. This head presents both limitation and evidential diculties. The particulars refer at one point to the period "May 2010 to May 2024", notwithstanding that the Claimant says she commenced employment in January 2016. The particulars further reproduce several holidays from the year 2020 and contain repeated dates while the computation simply assumes ten days for each of nine years. Recent authority also treats claims for unpaid public-holiday work as continuing injuries subject to the twelve-month restriction under section 90. In Nzaro v Board of Management Coast General Teaching & Referral Hospital [2026] KEELRC 230 (KLR), the Court held that accrued public-holiday benets constituted a continuing injury recoverable only within the statutory twelve-month period. The Claimant has not particularised which public holidays she actually worked during the nal twelve months of https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/845/eng@2026-08-27 4

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employment. A monetary claim for public-holiday work must still be proved by evidence identifying the dates worked or otherwise supplying a proper basis for computation. The Respondent's failure to defend the suit does not cure the deciencies in the Claimant's pleadings and proof. The claim for public-holiday pay is therefore declined. 28. House allowance- The Claimant testied that she was neither provided with accommodation nor paid house allowance. Section 31 of the Employment Act obliges an employer either to provide reasonable housing or pay sucient house allowance unless the employee's wage has lawfully been consolidated. There is no written contract establishing that the Claimant's Kshs. 10,000 salary was consolidated and no evidence that accommodation was provided. The Claimant is therefore entitled to house allowance. However, house allowance accruing month by month is likewise a continuing employment injury. It cannot be recovered retrospectively for the entire 117-month period. In Mwasoko v Changamwe Service Station Limited [2026] KEELRC 449 (KLR), the Court treated a claim for house allowance as a continuing injury for purposes of the limitation provision. I accordingly restrict recovery to the nal twelve months of employment. The Claimant pleaded house allowance at 15% of Kshs. 15,201.65, producing a monthly gure of approximately Kshs. 2,280.25. For twelve months: Kshs. 2,280.25 × 12 = Kshs. 27,363. 29. Service pay- The Claimant seeks Kshs. 98,752.50 as service pay. Section 35(5) provides for service pay but section 35(6) excludes employees covered by NSSF or another qualifying pension or provident scheme. The Claimant's own List of Documents expressly identies a Claimant's NSSF statement. Her witness statement, however, states that the Respondent did not pay her NSSF benets. The submissions similarly complain that the Respondent produced no NSSF remittance records. The evidence before Court does not suciently establish the Claimant's status under section 35(6) throughout the material period. Service pay cannot be awarded merely because the Respondent did not defend the claim. The Claimant was still required to establish that she was not covered by one of the statutory schemes contemplated under section 35(6). The claim for service pay is therefore declined for want of sucient proof. 30. Compensation for unfair termination- Having found that the termination was both substantively and procedurally unfair, the Claimant is entitled to consideration for compensation under section 49(1) (c). Compensation is discretionary and subject to section 49(4). The maximum twelve months' wages is not automatic. I have considered the following circumstances: 31. a. The Claimant served the Respondent for approximately ten years; b. Her service appears to have been continuous; c. No misconduct or disciplinary infractions were demonstrated; d. No reason for termination was provided; e. No hearing was accorded; f. Termination was communicated abruptly through a text message; and g. There is no evidence that the Claimant contributed to the termination. The Claimant relied on Alfred Muthomi & 2 Others v National Bank of Kenya Limited [2018] eKLR, particularly in relation to long service and good conduct. I consider an award equivalent to ten months' https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/845/eng@2026-08-27 5

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wages fair and proportionate in the circumstances. At the applicable statutory monthly wage of Kshs. 15,201.65: Kshs. 15,201.65 × 10 months = Kshs. 152,016.50. 32. Certicate of service- Section 51 of the Employment Act requires an employer to issue an employee with a certicate of service upon termination where the statutory threshold is met. The Respondent shall therefore issue the Claimant with a certicate of service within thirty (30) days from the date of this judgment. 33. Costs and Interest- The Claimant has substantially succeeded in establishing that her employment was unfairly terminated and has obtained monetary relief. Costs ordinarily follow the event. I award the Claimant costs of the suit. The monetary award shall attract interest at court rates from the date of judgment until payment in full. Final Orders 34. Judgment is therefore entered for the Claimant against the Respondent in the following terms: a. A declaration that the termination of the Claimant's employment on 1st November 2025 was unfair and unlawful; b. The Respondent shall pay the Claimant Kshs. 288,455.45, comprising: Kshs. 15,201.65 — one month's salary in lieu of notice; Kshs. 62,419.80 — underpayment for the permissible twelvemonth period; Kshs. 24,139.50 — accrued annual leave; Kshs. 7,315 — pro-rata leave; Kshs. 27,363 — unpaid house allowance for the permissible twelvemonth period; and Kshs. 152,016.50 — compensation equivalent to ten months' wages for unfair termination; c. The claims for historical underpayment and house allowance beyond the permissible limitation period are declined; d. The claims for public-holiday pay and service pay are declined; e. The Respondent shall issue the Claimant with a certicate of service within thirty (30) days; f. The Claimant shall have the costs of the suit; and g. The monetary award shall attract interest at court rates from the date of judgment until payment in full. Judgment accordingly. DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOSFT TEAMS AT MOMBASA THIS 27TH AUGUST 2026. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/845/eng@2026-08-27 6

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………………………………………………. EMILY M. MWAMUYE SENIOR RESIDENT MAGISTRATE https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/845/eng@2026-08-27 7

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