[2012] KEELRC 180 (KLR)
The court found that the claimant was employed by the respondent as a house servant and was dismissed without notice or valid reason, contrary to the requirements of the Employment Act. The respondent’s claim of desertion was not pleaded and was inconsistent with the evidence. The court held that the claimant was...
Source-derived case information.
- Citation
- [2012] KEELRC 180 (KLR)
- Parties
- Claimant: Grace Milehane Kavulavu; Respondent: Wilfred Ng’ang’a Kamiri
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 606 of 2012
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Judgment for the claimant.
- Judges
- B Ongaya
- Legal Topics
- Unfair Termination, Domestic Worker Rights, Wage Underpayment, Notice Pay, Annual Leave Entitlement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Grace Milehane Kavulavu
Claimant
Wilfred Ng’ang’a Kamiri
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant was unfairly terminated from employment by the respondent.
- 2 Whether the claimant was underpaid in contravention of statutory wage requirements.
- 3 Whether the claimant is entitled to compensation for unfair dismissal, notice pay, and annual leave.
Ratio Decidendi
The court found that the claimant was employed by the respondent as a house servant and was dismissed without notice or valid reason, contrary to the requirements of the Employment Act. The respondent’s claim of desertion was not pleaded and was inconsistent with the evidence. The court held that the claimant was unfairly terminated and entitled to compensation for unfair dismissal, underpayment for the statutory limitation period, one month’s salary in lieu of notice, and compensation for annual leave not taken. The claim for severance pay was denied as the case did not involve redundancy. The court awarded the claimant a total of Ksh.339,471.35 plus interest and costs.
Court Disposition
Judgment for the claimant.
Orders
- Declaration that the termination was unfair.
- Respondent to pay the claimant Ksh.339,471.35 plus interest at court rates from the date of judgment until full payment.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
Industrial Court of Kenya
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MRS. GRACE MILEHANE KAVULAVU……………………………………………CLAIMANT
VERSUS
MR. & MRS. WILFRED NG’ANG’A………………..........….……..…..…….… RESPONDENT
JUDGMENT
The claimant is Grace Milehane Kavulani appearing in person. Mwangi Wahome and Company Advocates appear for the Respondent. At the commencement of the hearing the Respondents’ counsel raised a preliminary issue on the parties to the suit. The court directed that the issue would be addressed in this judgment.
The evidence on record shows that the claimant was employed by Mr. Wilfred Ng’ang’a Kamiri and his wife one Mrs. Ng’ang’a. The court finds that the parties to this suit are the claimant Grace Milehane Kavulavu against the Respondent Wilfred Ng’ang’a Kamiri and the decision of this court will be construed accordingly.
The facts of the case are as follows:
1. The respondent employed the claimant at a monthly wage of Ksh.3,000/=. The employment was with effect from August, 1997.
2. The claimant worked diligently until some time when Mr. Wilfred Ng’ang’a Kamiri separated with his wife Mary Wanja Ng’ang’a. They were blessed with five issues who the claimant identified as Elizabeth Mukami, Kepha Kameri, Susan, Jane Waceke and John Muchiri. The Respondent Wilfred Ng’ang’a testified that he separated with his wife in 2009 but the claimant remained in his employment till 24th December, 2011. He paid her salary throughout the period she served.
3. The claimant was employed as a house servant performing the duties such as the work of a cook, cleaning the house and clothes. She performed household chores.
4. On 24th December 2012 the claimant stated that the Respondent Wilfred Ng’ang’a Kameri sacked her without notice and any reason. She was not paid her terminal dues. She also claimed her leave dues as she had gone for a compassionate leave only once for about five days when her child died. She worked on public holidays. The Respondent in his evidence claimed that she proceeded on Christmas vacation and deserted duty. The court finds that the Respondent’s position is a mere after thought because it was not pleaded as such and the Respondent in the memorandum of Defence had denied ever employing the claimant. The court finds that on a balance of probability, taking the oral evidence and the pleadings of the parties into account, the claimant was dismissed by Mr. Wilfred Ng’ang’a Kamiri without any notice and a hearing.
The court makes the following findings:
1. The Respondent unfairly terminated the services of the claimant there having existed a contract of service between the parties and no reason for the dismissal existed.
2. The under payment is not denied by the Respondent and the court finds that the claimant was entitled to Ksh.8,723. 90 per month as claimed.
3. In view of Section 90 of the Employment Act, the difference in payment of the wages being Ksh.5,723. 90/= would be permissible only for 3 years and the claimant is awarded Ksh.206,060. 65 for 36 months.
4. The claimant is awarded Ksh.8,723. 90/= being one month pay in lieu of notice.
5. The claimant is awarded Ksh.104,686. 80 being 12 months compensation for unfair dismissal.
6. As this was not a case for redundancy, the claimant is not entitled to severance pay as claimed.
7. Annual leave due but not taken has been proved but particulars of days due have not been proved. On that claim the court awards the claimant Ksh.20,000/=for the Respondent’s strict liability for breach of statutory provisions under Section 28 of Employment Act, 2007 that entitled the claimant to annual leave.
Accordingly judgment is entered for the claimant against the Respondent for-
(a)a declaration that the termination was unfair;
(b)the Respondent Wilfred Ng’ang’a Kamiri to pay the claimant Ksh.339,471. 35/= plus interest at court rates from the date of the judgment till full payment; and
(c)respondent to pay costs of the case.
Signed, dated and delivered at Nairobi this 23rd day of November, 2012.
Byram Ongaya
JUDGE