Househelp wins Sh569,717 payout against former employer

For six years, Gladys Misango, a househelp, rose before dawn to scrub floors, cook meals and care for a Kisumu household, all for just Sh4,000 a month.

There was no house allowance, no annual leave and no National Social Security Fund (NSSF) remittances. 

Now, the Employment and Labour Relations Court has turned the tables on her former boss, Rahim Ibrahim Ramzan, ruling that she was not a disposable casual cleaner, but a regular employee who was grossly underpaid and unfairly dismissed when she fell ill, and ordering him to pay her Sh569,717.48 in compensation.

According to court records, Ramzan hired Misango in March 2018 as a house servant.

The court noted that Ramzan employed the househelp in March 2018 at Sh 4,000.00 per month, who served diligently until April 16, 2024.

In her case before the court, Misango said she worked full-time in his home, performing domestic chores and serving the family continuously until 2024.

The court heard that Misango worked on a day-to-day basis for the six years between early morning hours and late at night.

Her salary, however, remained stuck at Sh4,000 a month, paid in cash or via M-Pesa, with no top-up for house allowance or statutory benefits.

Misango told the court that during the entire period, she never went on annual leave, never received house allowance, and that the employer did not remit any NSSF contributions on her behalf.

She further said that in March 2024, after she fell ill and sought hospital treatment, her employment was abruptly terminated without reason or notice.

I served diligently until March 15, 2024, when my employment was unfairly terminated without reason or notice, and my employer, Ramzan, neither provided housing nor allowance nor leave pay. NSSF deductions were not remitted, and l was underpaid," Misango testified in court.

She claimed that upon recovery, she found that her position had effectively been filled and that she had been shut out of her place of work.

She asked the trial court for Sh1,265,381.81 in underpayment arrears, unpaid house allowance, leave pay, gratuity, salary instead of notice, 12 months’ compensation for unfair termination, a certificate of service, and other reliefs.

Ramzan, in his defence, painted a very different picture of the working relationship. 

He admitted that Misango worked for him as a house servant and that she was paid Sh 4,000 per month in cash or via M-Pesa. 

However, he insisted she was only a casual worker who reported to his house from 9:00 am to 12:20 pm, working just a few hours a day rather than full-time.

He denied discriminating against her and maintained that there was no unfair dismissal. 

According to him, Misango absconded from duty and did not return, and therefore it was she, not he, who brought the employment relationship to an end. 

On that basis, he asked the trial court to dismiss the entire claim.

The trial court did not accept Ramzan’s version of events. 

Kisumu Chief Magistrate Fatuma Rashid found that Misango had indeed worked for him from March 2018 until March 15, 2024, and that her employment had been unfairly terminated.

The magistrate also held that she had been underpaid, that she was not provided with a house allowance, and that she did not go on annual leave.

The court further found that no NSSF remittances were made despite her years of service.

It awarded her a package of Sh 403,259 that covered underpayment, house allowance, leave pay, gratuity, salary instead of notice and compensation for unfair termination, applying the Regulation of Wages (General) Orders to calculate what she ought to have earned as a domestic worker during the period. 

It was this decision, particularly the inclusion of gratuity and the level of compensation, that prompted Ramzan to appeal to the Employment and Labour Relations Court. 

The appeal landed before Justice Jacob Gakeri, who on November 6, 2025, delivered a detailed judgment partly interfering with the trial court’s award but largely affirming its key findings. 

At the heart of the appeal was Ramzan’s argument that Misango was a casual worker who had deserted her job, and that the damages awarded were excessive.

Justice Gakeri began by revisiting the facts as established at the trial. 

He noted that the trial court had found Misango was employed in March 2018 at a monthly salary of KSh4,000 and served diligently until 15 March 2024.

Importantly, he observed that the employer’s own evidence confirmed a continuous working relationship. 

While Ramzan described her as working from 9:00 am to 12:20 pm, there was no suggestion that she came only occasionally or on an irregular basis. 

That continuity, the judge held, meant she could not be treated as a casual worker, but as a regular employee entitled to the protections of the Employment Act, including fair termination procedures and minimum labour standards.

On the claim of desertion, the judge was categorical that the employer had failed to discharge his burden of proof.

"There was no evidence that Ramzan had attempted to contact Misango after her absence, no letter summoning her back to work, and no disciplinary process initiated," Justice  Gakeri observed.

 The judge emphasised that the employer simply replaced her without making any effort to clarify whether she intended to resume duty. 

Having upheld the finding that the termination was unfair, he stated that the househelp qualified for compensation under Section 49(1) of the Employment Act.”

On the issue of underpayment, Justice Gakeri found that the trial court had correctly relied on the applicable Regulation of Wages (General) (Amendment) Orders to determine the lawful minimum wage for a domestic worker in the relevant period.

He concluded that the trial court’s computation of underpayment cannot be faulted, endorsing the figure of Sh403,259.40 as the amount due to Misango on account of underpayment over the years.

He added that salaries prescribed in the wage orders are exclusive of house allowance of 15% which an employee is entitled to, underscoring that house allowance is not a discretionary benefit.

On house allowance, the judge reaffirmed the trial court’s calculation of Sh82,088.91. 

“Needless emphasis, house allowance is a statutory right; the amount due is as correctly computed by the trial court,” he said, stressing that employers must either provide housing or pay the requisite allowance. 

On annual leave, he noted that Ramzan had conceded he had no evidence to show that Misango had taken any leave days. 

He explained that annual leave, like house allowance, is a statutory right and that if not taken, the employer is required to pay for the leave days the employee worked.

In this case, the amount due was Sh31,923.47, calculated at 21 days per year for three years.

Where the appellate court parted ways with the magistrate was on gratuity.

Justice Gakeri described gratuity as an amount paid by the employer to the employee in appreciation of the services rendered and stressed that it is a gift and is neither pension nor service pay nor severance pay.

He stated that gratuity is only payable when it is specifically provided for in an employment contract or a collective bargaining agreement. 

The fact that the employer did not remit NSSF contributions, he held, could not justify an award of gratuity.

 “Gratuity cannot be a substitute for NSSF pension,” he said, adding that if the claimant wished to pursue a remedy arising from lack of NSSF remittances, she ought to have prayed for service pay under Section 35(5) of the Employment Act.

He therefore set aside the gratuity award, calling it undeserved.

The judge also reviewed the compensation granted for unfair termination.

While upholding the finding that the termination was unfair, he considered the circumstances, including the length of service, the employee’s conduct and her own contribution to the breakdown of the employment relationship.

He noted that although Misango had served for six years, which is not long, she had no recorded cases of misconduct. 

However, he also observed that she had not expressed a desire to return to work or appeal her termination, and that she contributed to the termination by failure to keep the employer informed, remarking that a simple phone call would have been sufficient.

In light of these factors, he held that the equivalent of two months’ salary was fair, and substituted the trial court’s award of four months’ gross salary with two months, amounting to Sh34,963.80.

In addition, Justice Gakeri confirmed that Misango was entitled to one month’s salary instead of notice, assessed at Sh17,481.90. 

When combined with the underpayment, house allowance and leave pay, Misango's former employee was ordered to compensate her with a total award of Sh569,717.48.  

The judge, however, noted the decision is a reminder to employers that domestic workers are not automatically casuals merely because they work in private homes or are paid in cash. 

"Where there is continuous service over a period of years, and the worker performs core duties in a household, the law will treat them as regular employees entitled to minimum wages, house allowance, annual leave and fair termination procedures," He stated.