https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/151

Kalume v Wakbar (Cause E358 of 2025) [2026] KEMC 151 (KLR) (25 June 2026) (Judgment) Neutral citation: [2026] KEMC 151 (KLR) Republic of Kenya In the Mombasa Law Courts Cause E358 of 2025 EM Mwamuye, SRM June 25, 2026 Between Damaris Charo Kalume Claimant and Hazgal Wakbar Respondent Judgment Introduction 1.The Claimant instituted this claim through a Memorandum of Claim dated 5th April 2025 seeking various remedies arising from what she terms as unfair and unlawful termination of employment. She contends that she was employed by the Respondent as a househelp from 27th October 2021 until 3rd January 2025 when her employment was terminated without notice, hearing or lawful cause. 2.The Respondent filed a Response to the Memorandum of Claim dated 25th July 2025 denying the existence of an employer-employee relationship and asserting that the Claimant was merely engaged by the Respondent's spouse on an occasional casual basis whenever household assistance was required. 3.The Claimant subsequently filed a Reply to the Memorandum of Response dated 29th July 2025 reiterating her claim and denying the Respondent's assertions. 4.The matter was scheduled for hearing on 3rd November 2025 but did not proceed owing to the absence of the Claimant. It again came up on 23rd February 2026 when the Claimant was similarly absent. Upon application by counsel for the Claimant, the Court permitted the matter to proceed under Rule 59 by way of documentary evidence and written submissions. At the time of preparation of this judgment, only the Respondent had filed written submissions. 5.I have carefully considered the pleadings, witness statements, documents filed by the parties and the applicable law. Issues for Determination 6.The issues arising for determination are:i.Whether an employer-employee relationship existed between the Claimant and the Respondent.ii.Whether the Claimant was a casual labourer or an employee within the meaning of the Employment Act.iii.Whether the Claimant proved that her employment was terminated by the Respondent.iv.Whether the termination, if any, was unfair and unlawful.v.Whether the Claimant is entitled to the remedies sought.vi.Whether an Employer-Employee Relationship Existed 7.The Respondent's primary defence is that no employment relationship existed. The law places the initial burden of proof upon the party asserting a fact. Sections 107 and 109 of the Evidence Act require a claimant who alleges employment to establish the existence of such relationship before the burden shifts to the opposing party. 8.The Respondent relies heavily on authorities such as Kutu v Anaali Kenya Ltd, Zarika Adoyo Obondo v Tai Shunjun & Another and Owiti v C & A Security Services for the proposition that employment must first be proved before a court can consider claims for unfair termination. I agree with that proposition. However, each case turns on its own facts. 9.Unlike the authorities relied upon by the Respondent, the present case contains a clear admission by the Respondent and his witnesses that the Claimant rendered domestic services at the Respondent's residence. 10.Both the Respondent and his spouse expressly admit that:i.The Claimant worked at their household.ii.She performed domestic chores.iii.She was paid for those services.iv.The engagement continued over a period of time.v.She was repeatedly called upon to provide services whenever required. 11.The dispute is therefore not whether the Claimant worked for the household. The real dispute concerns the nature of that engagement. 12.The Respondent's wife, Salma Jaffer, acknowledges that she personally engaged the Claimant to perform cleaning, dishwashing and other domestic duties at the family residence. She further states that the Claimant would be called whenever assistance was required and would be paid for the services rendered. 13.The Court notes that domestic work is specifically recognized as employment under the Employment Act and the Regulation of Wages (General) Orders. 14.The Respondent's admission that the Claimant regularly rendered domestic services for remuneration is sufficient to establish the existence of a work relationship. The question that remains is whether the relationship remained casual throughout or whether it matured into regular employment. 15.I therefore find that an employment relationship existed between the parties. Whether the Claimant Was a Casual Labourer or an Employee 16.The Claimant alleges that she worked continuously from 27th October 2021 to 3rd January 2025 and earned Kshs. 10,000 per month. 17.The Respondent denies this and asserts that she only worked intermittently when called upon. 18.Ordinarily, where a worker alleges continuous service for over three years, documentary evidence such as payment records, mobile money statements, attendance records, leave records or corroborative witness testimony would greatly assist the Court. 19.In the present matter, the Claimant produced none of these. 20.The Claimant also did not testify in Court or subject her version of events to cross-examination. The Court is therefore deprived of the opportunity to interrogate the factual basis of her assertions. 21.On the other hand, the Respondent produced witness statements from both the Respondent and Salma Jaffer explaining the manner in which the engagement operated. 22.Although the Court approaches such evidence cautiously because it emanates from interested parties, the evidence remains uncontroverted. 23.The Claimant bears the burden of proving continuous employment. Beyond her witness statement, there is no independent evidence demonstrating: Daily attendance; Monthly salary payments; Exclusive service; Fixed working hours; Continuous control by the Respondent; Statutory deductions; Leave records; or Any other indicator of regular employment. 24.I therefore find that the Claimant has failed to establish on a balance of probabilities that she was employed continuously from October 2021 to January 2025 as alleged. 25.The evidence before Court more readily supports the Respondent's position that the engagement was informal, intermittent and dependent upon household need. 26.Accordingly, I find that the Claimant has failed to prove that she was a regular employee earning a monthly salary of Kshs. 10,000. Whether the Claimant Proved Termination 27.The Claimant alleges that on 3rd January 2025 she was denied entry into the Respondent's premises by a security guard who informed her that her services had been terminated. 28.The Claimant further alleges that the Respondent personally informed her that her services were no longer required. 29.The difficulty with this allegation is evidential. The security guard is the person said to have communicated the alleged termination. No statement from the security guard was filed. No affidavit was filed. No witness evidence was tendered from him. 30.The allegation therefore remains unsupported by any independent evidence. Further, the Claimant did not appear before Court to adopt her witness statement or submit herself to cross-examination. 31.In contrast, the Respondent's witnesses maintain that the Claimant informed the household in December 2024 that she intended to return to her rural home to care for her mother and thereafter ceased offering services. 32.Having considered the totality of the evidence, I am unable to conclude on a balance of probabilities that the Respondent terminated the Claimant's services on 3rd January 2025 as alleged. The Claimant bore the burden under section 47(5) of the Employment Act of proving the occurrence of termination. That burden was not discharged. Whether Unfair Termination was Proved 33.Sections 41, 43 and 45 of the Employment Act become operative once a claimant proves: The existence of employment; and the occurrence of termination. While I have found that a work relationship existed, I have further found that the Claimant failed to prove that the Respondent terminated that relationship. 34.Without proof of termination, the Court cannot proceed to interrogate procedural fairness or substantive justification. Consequently, the claim for unfair termination fails. Reliefs 35.Notice Pay- The Claimant failed to prove termination and therefore the claim for one month's salary in lieu of notice fails. 36.Compensation for Unfair Termination- The claim for twelve months' compensation is not proved and is dismissed. 37.Underpayments- The claim for underpayments was premised on the assertion that the Claimant was continuously employed and earned Kshs. 10,000 per month. That assertion was not proved. The claim therefore fails. 38.House Allowance- Not proved and dismissed. 39.Leave Pay- Not proved and dismissed. 40.Service Pay- Not proved and dismissed. 41.NHIF and NSSF Claims- Not proved and dismissed. Disposition 42.The Court finds that although the Claimant rendered domestic services at the Respondent's household from time to time, she failed to prove on a balance of probabilities that:a.She was continuously employed by the Respondent from 27th October 2021 to 3rd January 2025;b.She was a regular monthly employee earning Kshs. 10,000;c.Her services were terminated by the Respondent on 3rd January 2025; or the Respondent unfairly terminated her employment. 43.Accordingly, the Claimant's claim is hereby dismissed. 44.Given the nature of the dispute involving domestic work and the circumstances under which the claim was brought, I direct that each party shall bear its own costs. Orders 45.The Claimant's claim is dismissed. Each party shall bear its own costs. Interest is declined. It is so ordered. DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOSFT TEAMS AT MOMBASA THIS 25TH JUNE 2026.………………………………………………EMILY M. MWAMUYESENIOR RESIDENT MAGISTRATE