[2017] KEELRC 1389 (KLR)
The court found that the respondent's failure to produce employment records as directed compelled the court to rely on the records produced by the applicant. Applying section 10(6) and (7) of the Employment Act, the burden of proof regarding the applicant's salary shifted to the respondent, who failed to discharge...
Source-derived case information.
- Citation
- [2017] KEELRC 1389 (KLR)
- Parties
- Applicant: Bilha Fwende Masinde; Respondent: Sibumba Farmers Co-operation Society Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Cause 107 of 2014
- Procedural Posture
- Review Application / Post Judgment Review Ruling
- Outcome
- application for review allowed in part
- Judges
- DO Ogal
- Legal Topics
- Review of Judgment, Terminal Benefits, Burden of Proof, Salary Dispute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bilha Fwende Masinde
Applicant
Sibumba Farmers Co-operation Society Ltd
Respondent
Procedural Posture
Review Application / Post Judgment Review Ruling
Legal Issues
- 1 Whether the applicant's terminal benefits and compensation should be calculated based on her last salary or starting salary.
- 2 Whether the respondent's failure to produce employment records shifts the burden of proof under the Employment Act.
Ratio Decidendi
The court found that the respondent's failure to produce employment records as directed compelled the court to rely on the records produced by the applicant. Applying section 10(6) and (7) of the Employment Act, the burden of proof regarding the applicant's salary shifted to the respondent, who failed to discharge it. The court accepted the applicant's evidence that her last salary was Kshs. 20,733 and accordingly reviewed the judgment to recalculate the terminal benefits and compensation based on this amount.
Court Disposition
application for review allowed in part
Orders
- Award of 3 months salary in lieu of notice revised to Kshs. 62,199.00.
- Compensation equivalent to 12 months salary revised to Kshs. 248,796.00.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KISUMU
CAUSE NO. 107 OF 2014
(Before Hon. Lady Justice Maureen Onyango)
BILHA FWENDE MASINDE ............................................................APPLICANT
-Versus-
SIBUMBA FARMERS CO-OPERATION SOCIETY LTD...............RESPONDENT
RULING
Judgment in this case was delivered on 9th October 2015. Being dissatisfied by the judgment the Applicant filed an application for review of judgment on grounds that the terminal benefits and compensation awarded to her in the judgment was based on her starting salary of Kshs. 3500 instead of her last salary of Kshs.20,733. After hearing the parties on the application I directed the Respondent to produce records of the Applicant's salary and allowances for the last 12 months prior to the termination of her employment as the Respondent had disowned the Muster roll produced by the Applicant but did not produce any Muster Roll themselves.
The Respondent has failed to produce the said records and the court therefore has no option but to rely on the records produced by the Applicant. As stated in my ruling dated 1st December 2016 the court has been compelled to apply the provisions of section 10(6) and (7) of the Employment Act which shifts the burden of proof to the employer where the employer fails to produce prescribed records.
The foregoing being the case I find that the Claimant's last salary as per Muster Roll Book for Sibumba Farmers Co-op Society for the period 2009 t0 2014 was Kshs.20,733. I consequently review the award in the judgment dated as follows:
1. 3 months salary in lieu of notice Kshs. 62,199. 00
2. Compensation equivalent to 12 months salary Kshs. 248,796. 00.
3. 3 months salary upheld during suspension Shs.62,199. 00.
The rest of the judgment is as delivered on 9th October 2015.
Dated and signed and delivered this 4th day of May, 2017
MAUREEN ONYANGO
JUDGE