By Andrew Kariuki
The Employment and Labour Relations Court in Kisumu has partially allowed an appeal filed by Rahim Ibrahim Ramzan, altering only two components of a lower court’s award in a dispute involving the unfair termination of a domestic worker.
Justice Jacob Gakeri delivered the judgment on November 6, 2025, arising from a trial court decision issued on February 11, 2025, in Kisumu.
The case began when house help Gladys Misango sued her employer, claiming she had served from March 2018 until March 2024 before being dismissed without notice or explanation.
She told the trial court she earned Ksh 4,000 per month, received no house allowance, was denied annual leave and never had her NSSF deductions remitted.
She sought over Ksh 1.2 million in compensation, including underpayment arrears, statutory entitlements, salary in lieu of notice and 12 months’ compensation for unfair termination.
Ramzan admitted employing her but argued that she worked only half-days and stopped reporting to work, amounting to desertion.
He asked the court to dismiss the claim.
In its assessment, the trial court applied the Regulation of Wages (General) Orders and found significant underpayment.
Justice Gakeri agreed with that finding, upholding the trial court’s computation of Ksh 403,259.40 as the correct figure for underpayment.
The court also upheld Ksh 82,088.91 for unpaid house allowance, noting that the benefit is a statutory entitlement.
On leave pay, the judge observed that the employer provided no evidence that annual leave had ever been taken.
He reiterated that leave is a legal right and affirmed the award of Ksh 31,923.47 for accumulated leave days over three years.
The judge, however, disagreed with the trial court’s award of gratuity.
He held that gratuity is neither pension nor service pay and is only payable if it is expressly provided for in a contract or collective bargaining agreement.
He found that the trial court erred by treating the employer’s failure to remit NSSF as grounds for awarding gratuity.
He noted that the appropriate remedy in such a situation would have been a claim for service pay under Section 35(5) of the Employment Act, which the claimant did not pursue.
Justice Gakeri therefore set aside the gratuity award.
On the finding of unfair termination, the judge upheld the conclusion of the lower court.
He held that although the employee had served for six years, she had not expressed interest in retaining her job and had contributed to the breakdown of the employment relationship by failing to communicate her absence.
He awarded the equivalent of two months’ salary as compensation, totalling Ksh 34,963.80, replacing the four months granted earlier.
The judge also upheld one month’s salary in lieu of notice amounting to Ksh 17,481.90.
The revised total award stands at Ksh 569,717.48.
All other findings of the trial court were affirmed.
Justice Gakeri ordered each party to bear their own costs owing to the partial success of the appeal.
