[2020] KEELRC 1128 (KLR)
The court found that the claimant's evidence was uncontroverted and proved on a balance of probabilities. The claimant was entitled to service gratuity for 15 years of service at the rate of 18 days salary per completed year, as provided by the Regulation of Wages (Protective Services) Order 1998. All other...
Source-derived case information.
- Citation
- [2020] KEELRC 1128 (KLR)
- Parties
- Claimant: Benson Wambulwa; Respondent: Board of Management, Lunyu Secondary School
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Cause 21 of 2018
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Judgment for the claimant, with reliefs granted as specified and limited by statutory period.
- Judges
- MN Nduma
- Legal Topics
- Terminal Benefits, Service Gratuity, Overtime Pay, Rest Days Compensation, Arrears of Salary, House Allowance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Benson Wambulwa
Claimant
Board of Management, Lunyu Secondary School
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant is entitled to service gratuity for 15 years of service.
- 2 Whether the claimant is entitled to payment for rest days not taken, overtime, public holidays, house allowance, leave days, and arrear salaries for the last three years of service.
- 3 Whether any part of the claim is time-barred under the applicable law.
Ratio Decidendi
The court found that the claimant's evidence was uncontroverted and proved on a balance of probabilities. The claimant was entitled to service gratuity for 15 years of service at the rate of 18 days salary per completed year, as provided by the Regulation of Wages (Protective Services) Order 1998. All other claims—rest days, overtime, public holidays, house allowance, leave days, and arrear salaries—were limited to the last three years of service due to statutory limitation. The respondent's failure to contest or rebut the claimant's evidence resulted in judgment for the claimant on all heads of claim within the statutory period. Interest was awarded at court rates from the date of...
Court Disposition
Judgment for the claimant, with reliefs granted as specified and limited by statutory period.
Orders
- Service gratuity for 15 years of service at 18 days salary per completed year as per the Regulation of Wages (Protective Services) Order 1998.
- Claims for rest days, overtime, public holidays, house allowance, leave days, and arrear salaries limited to the last three years of service, to be computed and served within 30 days.
Full Case Text
Judgment text and source record
40 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT BUNGOMA
CAUSE NO. 21 OF 2018
(Before Hon. Justice Mathews N. Nduma)
BENSON WAMBULWA.......................................CLAIMANT
VERSUS
BOARD OF MANAGEMENT
LUNYU SECONDARY SCHOOL.................RESPONDENT
JUDGMENT
1. The suit was filed on 26th February 2018 the claimant seeking the following reliefs:
(i) Payment of service gratuity in the sum of Kshs. 15,000.
(ii) Payment for rest days not taken in the sum of Kshs. 80,000.
(iii) Payment of overtime in the sum of Kshs. 151,200
(iv) Payment in respect of public days in the sum of Kshs. 4,000.
(v) Payment in respect of house allowance in the sum of Kshs. 54,000
(vi) Payment in lieu of leave days not taken for years worked in the sum of Kshs. 24,230.
(vii) Arrear salaries for the period February 2007 to July 2017 in the sum of Kshs. 480,000
2. The statement of claim and summons to enter appearance were served on the respondent who proceeded to file memorandum of appearance on 21st March 2018 and a statement of defence on 11th April 2018. The office of the Attorney General also entered appearance on 18th April 2018 and filed statement of defence and list of documents on the even date.
3. The respondent represented by Mr. Tarus Advocate participated in the trial but did not call any witness in defence of the case.
4. The claimant (CW1) testified under oath as CW1 and adopted a witness statement dated 23rd February 2018 as his evidence in chief.
5. CW1 testified that he was employed by the respondent as a watchman from September 2006 and worked continuously until he reached the retirement age of 60 years in 2017.
6. The claimant was paid Kshs. 2,000 per month and the Board promised to review the amount later. The claimant asked for review of salary but it was not done. The claimant testified that he worked overtime including during public holidays for the whole period but he was not paid in respect thereof. That he had no letter of appointment. That he was underpaid and was not paid any terminal benefits upon his retirement.
7. The claimant prays to be paid all the reliefs set out in the statement of claim. The claimant issued a demand letter to the respondents through his advocates but same was not heeded hence this suit.
8. The evidence adduced by the claimant was not controverted. The claimant has proved his case on a balance of probabilities and the court awards him the following reliefs:
(a) Service gratuity payable for 15 years based on the salary he was entitled to in 2017 when he retired.
9. Claim in prayers 6(i) , (ii), (iii), (iv), (v), (vi) and (vii) are restricted to the last three years of service. The rest of the claim is time barred. The claimant to compute the award in respect of items (ii) to (vii) limited to the last three years of service and file and serve on the respondent within 30 days of the judgment.
10. In the final analysis judgment is entered in favour of the claimant against the respondent in respect of all the items set out under paragraph 6(i) to (vii) limited to the last three years of service except item (i) – Gratuity which is payable for the 15 years of service at the rate of 18 days salary for every completed year of service as per the Regulation of Wages(Protective Services) Order 1998 as amended.
11. Interest is payable at court rates from date of filing suit till payment in full.
12. Cost to follow the event.
Judgment Dated, Signed and delivered at Nairobi this 13th day of May, 2020
Mathews N. Nduma
Judge
ORDER
In view of the declaration of measures restricting court of operations due the COVID-19 pandemic and in light of the directions issued by his Lordship, the Chief Justice on 15th March 2020, this judgment has been delivered to the parties online with their consent. They have waived compliance with Order 21 rule 1 of the Civil Procedure Rules which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 18 of the Civil Procedure Act (chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.
Mathews N. Nduma
Judge
Appearances
Mr. Were for Claimant
Mr.Tarus for Respondent
Chrispo – Court Clerk