If you are a general labourer or cleaner in Mombasa, Nairobi, Kisumu, or Nakuru earning less than Sh16,113.75 per month (inclusive of housing allowance), your employer is underpaying you.
Whether or not you consented to this underpayment is irrelevant. Courts have previously ruled that parties in employment contracts cannot agree to an illegality, such as underpayment.
Cases filed and determined in Mombasa courts by unfairly dismissed employees have exposed the exploitative terms imposed by some employers. When faced with legal challenges, these employers often argue that the employee agreed to the terms.
The Ministry of Labour and Social Protection, through Legal Notice No. 164 under the Kenya Subsidiary Legislation, 2024, set minimum monthly wages (inclusive of housing allowance) for employees across the country.
For instance, in Nairobi, Mombasa, Kisumu, Nakuru, and Eldoret, general labourers—including cleaners, sweepers, gardeners, children’s ayahs, house servants, day watchmen, and messengers—should earn a minimum of Sh16,113.75 per month. The corresponding daily and hourly rates are Sh775.39 and Sh144.054, respectively.
In all former municipalities and town councils, including Mavoko, Ruiru, and Limuru, the minimum monthly wage for workers in this category is Sh14,866.92 (inclusive of housing allowance). The daily and hourly rates stand at Sh712.32 and Sh131.652, respectively.
Employees working in other parts of the country should receive a minimum monthly wage of Sh8,596.494. Their daily and hourly pay should be Sh435.66 and Sh80.507, respectively.
“This Order may be cited as the Regulation of Wages (General) (Amendment) Order, 2024, and shall come into operation on November 1, 2024,” stated the Ministry of Labour and Social Protection in the Gazette notice.
John Midira, a supervisor at a cleaning services company, is the latest beneficiary of a court ruling addressing underpayment.
In a judgment delivered on March 27, Employment and Labour Relations Court Judge Monica Mbaru found that Kamtix Cleaners Ltd had underpaid Mr Midira during his employment.
“An employment contract cannot be used to pay a wage contrary to the Wage Order, which sets the minimum. For the underpayment of the minimum wage, inclusive of house allowance, for 12 months, the respondent is entitled to Sh43,306.02,” ruled the judge.
However, the judge noted that Mr Midira should have raised the underpayment issue within 12 months of leaving the company to fully recover what he was owed.
“The respondent did not raise the issue of underpayment until the end of his employment. As such, he can only claim for 12 months,” the judge added.
A review of Mr Midira’s employment documents revealed an underpayment of Sh3,608.85 per month during his tenure.
In October 2020, the minimum wage for a general labourer in Mombasa was Sh13,572.90, with a house allowance of Sh2,035.95, bringing the total to Sh15,608.85.
In addition to recovering his underpaid wages, Mr Midira was awarded over Sh120,000 in compensation, plus 50 per cent of the legal costs.
Mr Midira had sued Kamtix Cleaners Ltd, claiming unfair dismissal after working there for three years, from September 1, 2017, to December 24, 2020.
He alleged that, for three years, the company deducted National Social Security Fund (NSSF) and National Hospital Insurance Fund (NHIF) contributions but failed to remit them.
In July 2020, he reported this to a client that had contracted Kamtix Cleaners Ltd. In response, the client instructed Kamtix Cleaners Ltd to resolve the matter.
Instead, the company’s director, Mohamed, allegedly threatened to terminate his employment. On December 24, 2020, Mr Midira was informed by the human resource manager that his employment would end on December 31, 2020.
He argued that the termination was retaliatory and unlawful, citing unpaid house allowances, lack of notice, and underpayment for 32 months. He sought over Sh250,000 in compensation, including notice pay and leave days.
Kamtix Cleaners Ltd denied the claims, stating that it paid Mr Midira a wage of Sh12,000, which it claimed complied with the Wage Orders.
“The respondent’s employment depended on our contract with the third party, which allowed for termination,” the company argued.
Resident Magistrate Noelyne Akee heard this case and ruled in Mr Midira’s favour, finding that his termination was unfair.
Dissatisfied with the ruling, Kamtix Cleaners Ltd appealed to the Employment and Labour Relations Court, seeking to overturn the magistrate’s judgment and compensation order.
The company argued that Mr Midira’s employment was not continuous but staggered, depending on the contract with the third party.
It also claimed that a clause in his contract placed him on probation for six months and that a new probationary contract was issued on September 1, 2019, for another 12 months. The company contended that the employment ended as per the probationary contract’s terms, requiring no notice.
Furthermore, the company cited Section 41 of the Employment Act, arguing that employment can be terminated for poor performance without assigning reasons during probation. It claimed that the award of notice pay and compensation was unjustified.
Mr Midira countered that the trial court had properly evaluated the evidence and delivered a fair judgment, which should be upheld.
Justice Mbaru examined the submissions and ruled that merely citing poor performance or probation is insufficient justification for termination.
“The due process outlined in Section 41 of the Employment Act is mandatory. The appellant failed to adhere to its letter of appointment and the provisions of Sections 35, 41, 43, and 45 of the Act, leading to unfair termination,” said the judge.
The judge further clarified that a probationary contract automatically converts into full-time employment unless explicitly extended, which cannot exceed 12 consecutive months.
“Any attempt to extend a probationary period through a new contract, without the employee’s consent, is unlawful. A probationary contract is not the same as a fixed-term contract that can be extended at the employer’s discretion,” Justice Mbaru ruled.
The judge also noted that Kamtix Cleaners Ltd failed to provide proof of issuing a notice to Mr Midira regarding his alleged poor performance. No hearing or documentation was elaborated on the allegations through a show-cause notice.
“The findings of the trial court on this issue cannot be faulted,” the judge ruled.
Justice Mbaru concluded that the reasons given for Mr Midira’s termination were unclear, as the company failed to specify whether it was due to the termination of a third-party contract, probationary terms, or alleged poor performance.
