Introduction
1. Contending that at all material times she was an employee of the Respondent as his House Help, whose employment was unfairly terminated, the Claimant sued the Respondent, seeking various remedies, thus;
a) One month’s salary in lieu of notice, KShs. 10, 954
b) Salary for July 2016, Kshs 10, 954.00;
c) Salary underpayments Kshs. 340, 369.20;
d) Compensation for unfair dismissal, 131,456.40;
e) To issue the Claimant with a Certificate of Service
f) Over time, KShs. 183,268.80
g) Damages for failure to issue a certificate of service, KShs. 100,000.
2. Via the memorandum of reply dated 29 May 2018, the Respondent denied the Claimant’s claim, asserting that there was no employer-employee relationship between him and the Claimant, the Claimant’s cause of action against him, and her entitlement to the reliefs sought.
Claimant’s case
3. The Respondent employed her on 5 March 2013 as a House Servant at a monthly salary of KShs 1,500. She served the Respondent for 36 months, until 18 July 2016, when he unfairly terminated her employment. The termination was without any reason. Additionally, prior to the termination, she was not notified that the Respondent was considering terminating her employment or the reasons for this. She was not given a chance to defend herself.
4. Throughout, the Respondent paid her below the applicable minimum wage stipulated in the relevant Wage Orders.
5. She further asserted that she worked two additional hours each day. She used to work from 5 a.m. to 2 pm daily. However, the Respondent did not compensate her for this at any time.
6. On or about July 18, 2016, her friend visited her workplace. She opted to assist the Claimant. The quality of her work appeared to be commendable to the Respondent. As a result, he decided to employ that friend with a monthly remuneration of KShs. 1200 and subsequently terminated the employment of the Claimant.
7. During cross-examination by the Respondent's Counsel, she stated that the Respondent employed her. She reported to work for him every day and did not hold any other job.
8. She contended that she never issued any demand to one Venita Hirani. Further, she did not instruct any counsel to write a demand letter to her.
9. Dinah Kemunto is the friend the Respondent employed after dropping her.
10. She denied the assertion that she was being paid Kshs 300 per day during her employment with the Respondent.
11. The Claimant denied that she was barred from entering the estate where she was working due to her bad manners.
12. Lastly, she didn’t not receive the letter dated 3rd November 2016 from the Labour office.
Respondent’s case
13. The Respondent and another witness, Vanita Hirani, testified in support of the Respondent's case. The Respondent stated that he and the Claimant had no employer-employee relationship. He asserted that, if at all, the Claimant provided any services to him, those services were rendered by her in her capacity as an independent contractor.
14. As an independent contractor, she rendered services to the Respondent for just three hours each week at his residence. The Claimant did not provide services to him full-time but rather on a weekly and casual basis. She was not under any supervision or control [direct or indirect] by him in the provision of her services to him as an independent contractor.
15. The Claimant asserts to have been employed by the Respondent from 5 March 2013 to 18 July 2016; however, during this same period, Vanita Hirani engaged her services. It cannot be plausible that two distinct employers simultaneously employed her on a permanent and pensionable basis.
16. Cross-examined by the Counsel for the Claimant, the witness stated that she could pay Kshs. 200 in cash for every day she worked, and sometimes, he could pay her at the end of the week.
17. She began working for him on 5 March 2013 and last worked for him in July 2017, during which time she worked only twice a week.
18. Her duties included cleaning the windows twice weekly and ironing the clothes once. She had no specific reporting time, as she was not working exclusively for him.
19. The Claimant could not continue serving him, as she had been barred from entering the estate housing the Respondent’s residence due to her misbehaviour.
20. He asserted that he was never summoned to the Labour office.
21. Witness Vanita Hirani stated that she lived as a neighbour to the Respondent throughout all relevant times, with both residing in the same compound.
22. The Claimant was a casual worker who worked in several houses within the estate, including the Respondent's residence and seven other houses within the estate.
23. She asserted that the Claimant worked in her house from February 2014 to April 2015, and she was paid KShs 200 for every job.
24. Around April 2015, the Claimant had an altercation with the security guards manning the estate and was, as a result, denied entry. She had denied being searched contrary to the estate's regulations.
25. She didn’t hear of her until October 2016, when she [the witness] was served with a demand letter dated 20 October 2016 from an organisation called Eye on Legal Aid and Human Rights alleging that she had unfairly terminated the Claimant’s employment and consequently demanded compensation for unfair and wrongful termination.
26. The Claimant was never an employee of the Respondent. She was a casual labourer who was paid at the end of each day she worked.
27. The Claimant’s suit herein is a ploy to extort the Respondent and an effort to enrich herself unjustifiably to the prejudice of the Respondent.
28. Cross-examined by Counsel for the Claimant, the witness stated that the Claimant worked for the Respondent from 2013 to 2015 and that the Respondent paid her KShs. 200 daily. Her working days were not specific. Sometimes, she worked two days a week, and at other times, three days.
29. Although the Claimant issued her a demand letter, the Claimant didn’t sue her.
30. The Respondent paid for the Claimant’s NHIF and NSSF.
31. In her evidence in re-examination, she stated that the respondent was sent a demand letter like that which was sent to her.
Analysis and Determination
32. I have carefully considered the pleadings by the parties, the witness statements filed by them, their respective oral evidence, and submissions by their Counsel, and the following issues emerge for determination;
I. What was the nature of the relationship between the Claimant and the Respondent?
II. Was the Claimant’s employment unfairly terminated?
III. Is the Claimant entitled to the reliefs sought?
33. There is no dispute that the Claimant served the Respondent for approximately three years, performing household chores for him. However, they adopted diametrically opposing positions regarding the nature of the engagement under which the Claimant served. The Claimant asserted that hers was a contract of service, as she worked for a monthly salary on a permanent and pensionable basis. The Respondent, on the other hand, was not very clear. On the one hand, he claimed that the Claimant was an independent contractor, and thus her engagement was under a contract for service; on the other hand, he suggested that she was a casual labourer paid at the end of each day she worked.
34. In situations such as the present matter, where there is no mutual understanding regarding the form of engagement, it becomes imperative for one to ascertain the specific type, as the various forms of engagement recognised by law entail different rights and protections.
35. Black’s Law Dictionary defines casual employment, thus;
‘Work that is occasional, irregular, or for a short term, often associated with day labour.”
36. Section 2 of the Employment Act defines a casual employee as;
“ a person the terms of whose engagement provide for his payment at the end of each day and who is not in engagement for a longer period than twenty four hours at a time.”
37. The Respondent and his witness provided clear testimony: the Claimant worked for multiple households in their estate, independently earning KShs. 200 per day from each when she rendered services. While the Claimant argues that their evidence was undermined during cross-examination, I disagree. It is important to note that the arrangement described by the Respondent and the witness is typical today.
38. This Court notes the witness’s evidence that on or about 20 October 2016, through an entity, Eye on Legal Aid and Human Rights, acting on behalf of the Claimant, she was issued a demand letter, in which it was claimed that she was an employer of the Claimant from 5 March 2013 to 18 July 2016, whose employment she unfairly terminated, and therefore, she was liable to compensate her.
39. This Court has not lost sight of the fact that a letter containing similar allegations and a similar date was issued to the Respondent. Both letters were presented as evidence in this matter. The Claimant needed to clarify this but provided no convincing explanation, only a general denial.
40. The being of these letters, in my view, fortifies the Respondent’s explanation as regards the form of the Claimant’s service to him.
41. Therefore, I conclude that the Claimant was a casual worker, employed not only by the Respondent but also by various other homeowners within the Respondent’s estate, receiving payment at the end of each day worked.
42. The rights and protections under sections 41, 43, and 45 of the Employment Act do not apply to casual employees unless their employment has converted into a term contract under section 37 of the Act.
43. Having found as I have hereinabove, as regards the Claimant’s form of employment, and the non-applicability of the rights and protections under the said sections to casual employees, I, without difficulty, hold that the Claimant’s employment wasn’t terminated as she claimed, and the reliefs sought are unfounded.
44. Consequently, I dismiss the Claimant’s claim as lacking in merit.
Read, Signed, and Delivered this 29th Day of 2025.