The respondent (claimant at the trial court), a domestic worker employed by the appellant from March 2018 to March 2024, alleged that her employment was unfairly terminated after she fell ill and sought medical attention. She claimed underpayment, lack of house allowance, non-remittance of NSSF, denial of leave, and unfair termination. The trial court found in her favour especially on undepayment.The appellant challenged the judgment on grounds that the respondent was a casual worker, that the court disregarded his evidence, and that the awards were excessive.The appellate court found that the respondent was a regular employee, not a casual labourer who  was paid Kshs. 4,000 per month amount was far below the statutory minimum wage for a domestic worker in Kisumu.The appellate court also found no error in the trial court’s calculation of underpayment  stating that it was based on the correct Wage Orders and proper methodology.The Respondent was awarded a total pay of  Kshs.569,717.48 having set aside trial court award on gratuity

 

Case Citation-Ramzan v Misango (Appeal E005 of 2025)[2025] KEELRC 3083 (KLR)

 Delivered by: JK Gakeri on 6th November  2025

Background

The respondent, a domestic worker employed by the appellant from March 2018 to March 2024, alleged that her employment was unfairly terminated after she fell ill and sought medical attention. She claimed underpayment, lack of house allowance, non-remittance of NSSF, denial of leave, and unfair termination. The trial court found in her favour and awarded Kshs. 683,328.00.The appellant challenged the judgment on grounds that the respondent was a casual worker, that the court disregarded his evidence, and that the awards were excessive. The court held that the respondent worked continuously for 5 years, was paid monthly, and was supervised by the appellant’s household — clearly inconsistent with casual employment under section 2 of the Employment Act. The appellant’s own witnesses confirmed she was a house servant. .T​he appellate court found that ​​the respondent was a regular employee, not a casual labourer​ who  was paid Kshs. 4,000 per month​ amount was far below the statutory minimum wage for a domestic worker in Kisumu​.The appellate court ​ thus found no error in the trial court’s calculation of underpayment  stating that it was based on the correct Wage Orders and proper methodology.​The Respondent was awarded a total pay of  Kshs.569,717.48. having set aside trial court award on gratuity

Issues for Determination

The first issue for determination was whether the respondent was a casual employee or a regular employee. Secondly ,whether termination of employment was substantively and procedurally fair. Thirdly ,whether the awards given by trial court were fair and lawful  .

Court’s Determinations

The first issue for determination was whether the respondent was a casual employee or a regular employee within the meaning of the Employment Act. This required the Court to examine the nature, duration, and terms of the engagement between the parties, as well as the mode and frequency of payment. Although the appellant alleged that the respondent only reported to work “once in a while,” the evidence on record—including the appellant’s own testimony and that of his witnesses—established that the respondent had worked continuously as a domestic worker from March 2018 to March 2024, was paid monthly, and worked under direct supervision. Under section 2 of the Employment Act, a casual employee is one paid at the end of each day and engaged for no more than twenty-four hours at a time. The respondent’s long-term, structured, and uninterrupted service excluded her from the category of casual labour, making her a regular employee entitled to the statutory protections and benefits applicable to such employees.

The second issue was whether the termination of the respondent’s employment was substantively and procedurally fair. Substantive fairness required the appellant to demonstrate a valid and justifiable reason for termination, while procedural fairness required compliance with the safeguards set out under sections 41, 43, and 45 of the Employment Act. The appellant contended that the respondent deserted duty, but he produced no evidence of attempts to contact her, no notice to show cause, and no disciplinary hearing as required by law. Witness evidence indicated that the respondent was unwell on the date she stopped working and that the appellant made no effort to verify her whereabouts or allow her to resume duty. In the absence of both a valid reason and due process, the Court found that the termination failed the dual test of substantive and procedural fairness.

The third  issue for determination was whether the awards granted by the trial court were fair, lawful, and supported by the evidence and applicable statutory provisions. The appellate court undertook a fresh evaluation of each head of award—underpayment, house allowance, leave pay, gratuity, notice pay, and compensation for unfair termination—to determine whether the trial court applied correct legal principles in assessing them. It found that the awards for underpayment, house allowance, and leave pay were properly grounded in the Regulation of Wages (General) (Amendment) Orders and were supported by uncontested evidence that the respondent was paid well below the statutory minimum wage, was not provided housing or a consolidated salary, and had not been granted annual leave. These awards were therefore fair and sound in law. However, the award of gratuity was set aside because gratuity is only payable where expressly provided by contract or a collective bargaining agreement, and cannot be awarded merely because the employer failed to remit NSSF contributions. Similarly, the compensation for unfair termination was reduced from four to two months’ salary, the appellate court holding that the trial court had exercised its discretion excessively given the length of service, the respondent’s partial contribution to the separation, and the surrounding circumstances. Overall, the appellate court found that while most awards were fair and justified, limited intervention was necessary to correct portions that were unsupported by statute or principle. The appeal was  thus partially successful. Gratuity was set aside, and compensation was reduced. Final award was given at  Kshs. 569,717.48 and each party was to bear its own costs.