[2018] KEELRC 2512 (KLR)
The court found that the claimant had proved his case on a balance of probabilities, as the respondent failed to file a defence or provide any evidence in rebuttal. The court accepted the claimant's evidence that he was not paid house allowance for five years, was not paid service pay, and did not receive leave for...
Source-derived case information.
- Citation
- [2018] KEELRC 2512 (KLR)
- Parties
- Claimant: Benard Kimeu; Respondent: Creative Consolidated Systems Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 2280 of 2016
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- claim allowed in part
- Judges
- MN Nduma, DO Ogal
- Legal Topics
- Oral Employment Contracts, Service Pay, Unpaid House Allowance, Leave Entitlements, Certificate of Service
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benard Kimeu
Claimant
Creative Consolidated Systems Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant was entitled to payment in lieu of leave not taken.
- 2 Whether the claimant was entitled to service pay for the period worked.
- 3 Whether the claimant was entitled to unpaid house allowance for five years.
Ratio Decidendi
The court found that the claimant had proved his case on a balance of probabilities, as the respondent failed to file a defence or provide any evidence in rebuttal. The court accepted the claimant's evidence that he was not paid house allowance for five years, was not paid service pay, and did not receive leave for 21 days. The court applied the relevant provisions of the Employment Act, 2007, including sections 28, 31, 35(5), and 51, and awarded the claimant the sums claimed for leave, service pay, and unpaid house allowance, less one month's salary in lieu of notice. The court also ordered the issuance of a certificate of service, interest at court rates, and costs of the suit.
Court Disposition
claim allowed in part
Orders
- Respondent to pay claimant Kshs.10,500 in lieu of 21 days leave not taken.
- Respondent to pay claimant Kshs.60,000 as service pay for eight years.
Full Case Text
Judgment text and source record
46 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CAUSE NO. 2280 OF 2016
(Before Hon. Justice Mathews N. Nduma)
BENARD KIMEU......................................................................CLAIMANT
VERSUS
CREATIVE CONSOLIDATED SYSTEMS LIMITED.....RESPONDENT
JUDGEMENT
1. The Claimant was employed by the Respondent pursuant to an oral contract of employment as a steward on 13th December, 2007.
2. The Claimant worked continuously until 7th April, 2016 when he voluntarily resigned from employment. At the time of resignation, the Claimant had risen to a supervisor and earned a gross monthly salary of Kshs.13,000 made up of a basic salary of Kshs.10,660 and house allowance of Kshs.2,340.
3. The Claimant produced a pay slip for the months of June to August, 2013 indicating the above salary.
4. By a letter dated 1st July 2016, the Respondent purported to appoint the Claimant on a two year contract from 1st July, 2010 to 30th June, 2012 as a gardener.
5. The Claimant states that between 13th December, 2007 when he started working to 30th May 2013 the house allowance of Kshs.2,340 was not paid.
6. The Respondent also paid no contribution to any registered pension fund including NSSF on behalf of the Claimant.
7. The Claimant seeks the following reliefs:-
a. Payment in lieu of 21 days leave in the sum of Kshs.10,500.
b. Payment of service pay for 8 years worked calculated at 15 days salary for 8 years in the sum of Kshs.60,000.
c. Unpaid house allowance for five (5) years in the sum of Kshs.260,000 less one month’s salary in lieu of notice.
The Claimant also seeks –
d. Certificate of service in terms of section 51 of the Employment Act, 2007.
8. Claimant issued a letter of demand but was neglected by the Respondent.
Response
9. The Memorandum of Claim was served on the Respondent on 9th December, 2016. The Respondent filed Memorandum of Appearance through Mugambi & Kariuki Co. Advocates on 19th December, 2016. However the Respondent did not file any Memorandum of Defence and an application to proceed to formal proof was granted on 21st June, 2017 to take place on 18th September, 2017.
10. The Claimant testified on oath and adopted the written statement filed together with the statement of claim on 9th November, 2016 as his evidence in chief.
11. The court has considered the statement of claim and the annextures thereto together with the testimony by the Claimant under oath and has come to the conclusion that the Claimant has proved his case on a balance of probabilities in the absence of any rebuttal by the Respondent.
12. Accordingly, the Court finds the following reliefs to have been proved and award the Claimant against the Respondent:-
a. Kshs.10,500 in lieu of 21 days leave not taken.
b. Kshs.60,000 being service pay calculated at 15 days salary for eight years based on the last monthly gross pay earned by the Claimant at Kshs.13,000.
c. Unpaid house allowance for five (5) years calculated at 15% of the basic salary earned by the Claimant at the time of resignation in the sum of (13,000 x 15% x 12 months x 5 years) =117,000.
Total award Kshs.187,500
Less one month salary in lieu of notice (Kshs.13,000)
Net award Kshs.187,500.
d. Certificate of Service for 8 years.
e. Interest at Court rates from date of filing suit till payment in full.
f. Respondent to pay costs of the suit.
g. Implementation be within 30 days of this Judgment.
Dated and Signed in Kisumu this 18th day of December, 2017
Mathews N. Nduma
Judge
Delivered and signed in Nairobi this 19th day of January, 2018
Maureen Onyango
Judge
Appearances
J. K. Rutto for Claimant
Mugambi & Kariuki & co. Advocates for Respondent
Anne Njung’e – Court Clerk