Amisi v Karsan (Cause 1936 of 2016) [2025] KEELRC 159 (KLR)

Employment and Labour Relations Court

31 January 2025

JRJames Rika

2,249 words in judgment

View original judgment Read on Kenya Law Watch case

AI-assisted case brief

·~9 min to read original · ~4 min brief

The bottom line

A domestic worker lost her unfair termination claim because she could not prove an employment relationship even existed.

What this practically means

Executive summary

The Claimant sued the Respondent claiming she was employed as Domestic Help from 4th August 2014 until termination on 30th June 2016 at a monthly salary of Kshs. 3,800, and sought notice pay, annual leave, service pay, 12 months' compensation for unfair termination, underpayment damages, and a fine for failure to issue a certificate of service, totalling Kshs. 375,469 plus costs and interest. The Respondent denied any employment relationship, asserting the Claimant only offered laundry services from January 2016 at Kshs. 300 daily, coming 3-5 days a week, and ceased voluntarily on 30th June 2016. The Respondent and her daughter Vaishnavi Karsan testified that the Respondent, a Hindu housewife who cooked for her own family with her daughters' help, only gave the Claimant clothes to wash out of charity after persistent requests for assistance. The Court framed three issues: existence of an employment relationship, unfair termination, and entitlement to the prayers. Applying the primacy-of-facts principle in ILO Recommendation No. 198 and the ILO Domestic Workers Convention No. 189 framework, the Court found the Claimant was a mama nguo whose earnings were supplemental, whose income of Kshs. 3,800 was inconsistent with her stated expenditure of about Kshs. 5,000, and who failed to adduce circumstantial evidence of an oral contract. The burden of proving the oral employment contract was on the Claimant and was not discharged. The claim was dismissed with no order on costs, in a judgment dated 31st January 2025.

Questions the Court framed

The issues the Court set itself to decide, in its own words.

1.Whether the Claimant was an Employee of the Respondent
2.If affirmative, whether the Respondent terminated her contract unfairly and unlawfully
3.Whether she is entitled to the prayers sought

Key legal issues

Whether an employer-employee relationship existed between the Claimant and the Respondent

Holding

No employment relationship was established; the Claimant was a mama nguo (laundry lady) engaged casually, not an employee.

Reasoning

The Claimant pleaded employment from 4th August 2014 but could not recall the date or nature of her work. She worked only a few hours, 3-5 days a week, washing clothes at Kshs. 300 daily. Her claimed monthly income of Kshs. 3,800 was inconsistent with her stated expenditure of about Kshs. 5,000, suggesting supplemental income. She failed to produce circumstantial evidence such as messages or witnesses to prove an oral contract. Both parties' evidence showed she was a laundry lady.

p. 5

Burden of proof in oral contract of employment claims

Holding

It was the Claimant's obligation to establish the oral contract; she failed to persuade the Court to presume an employment relationship and shift the burden to the Respondent.

Reasoning

Oral contracts are recognized under the Employment Act but are harder to prove. Domestic workers' claims tend to be word against word. The Claimant had to supply circumstantial evidence - text messages, photographs, or witnesses who saw her at work. She was unclear on dates and the scope of her work, so the Court declined to invoke the presumption of an employment relationship.

p. 4

Whether termination was unfair and whether statutory benefits were due

Holding

Not reached on the merits - both questions depended on the prior finding that no employment relationship existed.

Reasoning

The issues of unfair termination and statutory benefits were conditional on the establishment of an employment relationship. Having found the Claimant was not an employee but a casual laundry worker who sought assistance from the Karsans, the Court found the Respondent was not liable under contract or law for termination or statutory dues.

p. 3

Legal principles established

Determination of the existence of an employment relationship is primarily based on the facts relating to the provision of work and remuneration - primacy of facts per ILO Recommendation No. 198.
A domestic worker must establish an employment relationship to benefit from the protection of the law; courts cannot presume an oral contract of domestic employment without basic evidence.
Under ILO Recommendation No. 198, remuneration from the work should be the sole or main source of revenue for the worker in determining an employment relationship.

Court orders

1.The Claim is dismissed.
2.No order on the costs.

The bench

One judgment of the whole court — no separate or dissenting opinions.

James RikaJ

majority

Wrote the judgment

Jurisdiction invoked: Employment and Labour Relations Court jurisdiction under the Employment Act (not expressly cited in the judgment)