Kathra Hussein Noor & another v Kaderdina Hajee Essak Limited [2016] KEELRC 509 (KLR)
The bottom line
#A Kenyan court awarded a salesperson Kshs. 473,346 after her employer sacked her without a reason, hearing, or legally required minimum wages.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Claimant was a Salesperson or General Clerk
- 2.Whether she was paid a monthly basic salary and house allowance in accordance with the law
- 3.Whether her contract was terminated fairly and lawfully
- 4.Whether she merits the remedies sought
Key legal issues
#Whether the Claimant was a Salesperson or General Clerk
The Court held she was a Salesperson as designated in the contract of employment; job categorization follows the contract designation and field work or formal training is not necessary
The contract designated the Claimant a Counter Salesperson. Applying the ISCO-08 classification adopted in Crispol Ngugi Kimani v Yako Supermarket, a Salesperson sells goods directly to the public on behalf of retail establishments. The Claimant sold African wear inside the shop on behalf of the Respondent; her role was specific, not generalized. Had the Respondent intended a different categorization, the contract would have said so.
Whether underpayment claims from 2010 were barred by limitation under Section 90 of the Employment Act
Not barred; underpayment is a continuing default and the accrual date resets with each monthly default, so accrued benefits beyond three years are recoverable where the claim is filed within time
Following David Wanjau Muhoro v Ol Pajeta Ranching Limited, the Court held that underpayments are a continuing default; time resets each month and arrears are payable on termination. Section 48 of the Labour Institutions Act 2007 makes minimum wage rates contractual terms and criminalises underpayment, so Parliament cannot have intended Section 90 to inhibit civil recovery of wage arrears.
Whether the Respondent's reliance on the repealed Regulation of Wages and Conditions of Employment Act Cap 229 for house allowance was misconceived
The Respondent's objection failed; instruments made under the repealed Act continue in effect under Section 63(2) of the Labour Institutions Act 2007
Cap 229 was repealed by Section 63(1) of the Labour Institutions Act 2007, but Section 63(2) saves regulations and instruments made under the repealed Act. The Regulation of Wages [General] Order is such a saved instrument, and Regulation 4 (15% house allowance) is to be read with Section 31 of the Employment Act 2007.
Whether the termination was fair and lawful
Termination was unfair both substantively and procedurally; the termination letter gave no reason, obsolete warning letters could not justify it, and no hearing was conducted
Sections 43, 45 and 47(5) of the Employment Act require an Employer to give and justify reasons for termination; the one-line letter gave none. Allegations of stealing and cheating raised in Court for the first time were not in the termination letter. Section 41 procedural protections (investigation, show cause, charges, hearing with a representative) were not observed. The employment-at-will doctrine relied on by the Respondent is obsolete.
Legal principles established
#- Substantive justification is a mandatory requirement for an Employer in all termination decisions under the Employment Act 2007; the employment-at-will doctrine has no place in Kenyan labour law
- Arrears of salary and underpayments involve a continuing default by the Employer; limitation under Section 90 of the Employment Act does not bar recovery of accrued wage arrears so long as the claim is filed within time
- Minimum rates of remuneration in a Wages Order constitute a term of employment, overriding inferior contractual terms
- Where no free housing accommodation is provided, the Employee is entitled to house allowance of 15% of basic salary under Regulation 4 of the Regulation of Wages [General] Order read with Section 31 of the Employment Act 2007
- Procedural fairness requires investigation of allegations, a show-cause opportunity, specific charges, a hearing with a representative of choice, and reasons for the disciplinary decision
Court orders
#- 1.Declaration that termination was unfair
- 2.The Respondent shall pay to the Claimant Kshs. 84,313 in compensation for unfair termination, and Kshs. 389,033 in underpayment of salary - total Kshs. 473,346
- 3.The full amount shall be paid within 35 days of delivery of the decision, in default to attract interest at 14% p.a. from the end of the 35 days till payment in full
- 4.No order on the costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Industrial Court (Procedure) Rules 2010, Rule 27(1)(a) - unfair and unlawful termination dispute under the Employment Act 2007 and Labour Institutions Act 2007
Relief refused
#1 month salary in notice pay
There was a written one-month termination notice whose presence was not disputed; no reason strong enough to justify payment of notice pay
12 months' salary (maximum compensation) for unfair termination
Considering the parties' long association and family ties, and other reliefs granted, the Court instead awarded 4 months' gross salary
Costs against the Respondent
The costs prayer was flawed (pleaded as costs of 'the application') and the Court exercised its discretion to make no order on costs
Costs
No order on the costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Termination was unfair
The Respondent shall pay to the Claimant Kshs. 84,313 in compensation for unfair termination, and Kshs. 389,033 in underpayment of salary- total Kshs. 473,346.
The full amount shall be paid within 35 days of the delivery of this decision, in default, the amount to attract interest at 14% p.a. from the and of the 35 days, till payment in full.
No order on the costs.
Substantive justification is a mandatory requirement on the part of an Employer, in all termination decisions, under the Employment Act 2007.
Accrued benefits stretching back beyond a period of 3 years, are not to be severed and treated as having gone stale.
Issues in the judgment
#The judgment states the Statement of Claim was filed on 17th March 2016, but elsewhere records that the Respondent filed its Statement of Response on 17th April 2014 and that the Claimant testified on 3rd December 2015 - the pleading date appears erroneous
The termination letter is inconsistently dated - the pleading states 27th February 2014, the Claimant's evidence says 27th January 2014, and the Court's analysis states 27th March 2014
The prayer for underpayment for the period 1st May 2011 to 30th October 2012 appears mislabelled in the pleadings (should be 1st May 2011 to 30th April 2012), with arithmetic inconsistencies in the figures claimed versus those awarded
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kahasu v Odinga (Appeal E195 of 2024) [2025] KEELRC 2766 (KLR)[2025] KEELRC 2766 (KLR)9 Oct 2025
Cite this brief
#Cite this brief
Caselaw, "Kathra Hussein Noor & another v Kaderdina Hajee Essak Limited [2016] KEELRC 509 (KLR)", Case Analysis (2016). Cause Number 111 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/509/eng@2016-09-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.