[2017] KEELRC 932 (KLR)
The court found that the respondent had a statutory obligation to remit both employer and employee pension contributions to the claimant scheme. The respondent admitted to failing to remit the contributions and did not contest the claim or attend the hearing. The claim was for a liquidated sum, and the evidence,...
Source-derived case information.
- Citation
- [2017] KEELRC 932 (KLR)
- Parties
- Claimant: Board of Trustees, National Water Conservation & Pipeline Corporation (NWCPC) Superannuation Scheme; Respondent: Eldama Ravine Water & Sewerage Company Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Cause 263 of 2016
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Judgment for the claimant.
- Judges
- MSA Makhandia
- Legal Topics
- Pension Contributions, Employer Obligations, Statutory Deductions, Employee Benefits
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Board of Trustees, National Water Conservation & Pipeline Corporation (NWCPC) Superannuation Scheme
Claimant
Eldama Ravine Water & Sewerage Company Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the respondent failed to remit both employer and employee pension contributions to the claimant scheme as required.
- 2 Whether the claimant is entitled to the claimed sum and interest as per the Retirement Benefits Amendment Act, 2006.
- 3 Whether the respondent should bear the costs of the suit.
Ratio Decidendi
The court found that the respondent had a statutory obligation to remit both employer and employee pension contributions to the claimant scheme. The respondent admitted to failing to remit the contributions and did not contest the claim or attend the hearing. The claim was for a liquidated sum, and the evidence, including the respondent's own admission, was uncontroverted. The court held that the claimant was entitled to judgment for the sum claimed, together with compounded monthly interest at 3% as provided by statute, and awarded costs to the claimant.
Court Disposition
Judgment for the claimant.
Orders
- The respondent shall pay the claimant Kshs 7,479,072.83 being unremitted pension contributions.
- The respondent shall pay compounded monthly interest at 3% on the arrears outstanding until payment in full.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAKURU
CAUSE NO. 263 OF 2016
BOARD OF TRUSTEES, NATIONAL WATER
CONSERVATION & PIPELINE CORPORATION
(NWCPC) SUPERANNUATION SCHEME CLAIMANT
v
ELDAMA RAVINE WATER & SEWERAGE
COMPANY LIMITED RESPONDENT
JUDGMENT
1. The Board of Trustees, National Water Conservation & Pipeline Corporation (NWCPC) Superannuation Scheme (the Trustees) sued the Eldama Ravine Water & Sewerage Co. Ltd ( Respondent) on 11 July 2016 and the issue in dispute was stated as Failure by the Respondent to remit its and the employee’s pension contribution to National Water Conservation and Pipeline Corporation (NWCPC) Staff Superannuation Scheme.
2. According to an affidavit of service sworn by Wycliffe Shikuku M’Mada, the Respondent’s advocate on record was served through registered post.
3. On 5 August 2016, the Respondent filed in Court a letter dated 28 July 2016 acknowledging receipt of the Summons and the fact that it has failed to remit the pension contributions. The Respondent also sought for more time to conclude consultations with a view to settling the pension arrears.
4. On 14 December 2016, the Respondent entered a Memorandum of Appearance on 14 December 2016 through Limo R.K. & Co. Advocates. However, no Response was filed.
5. On 28 February 2017, the Court scheduled the hearing of the Cause for 28 March 2017 and directed that a hearing notice be served.
6. The Respondent was not represented however, during the hearing.
7. One of the trustees, Lucas Ngiela Angira testified on behalf of the trustees.
8. He stated that each of the Respondent’s employee’s/member were to contribute 7. 5% of their basic salary, while the Respondent was expected to contribute the equivalent of 15% of each employees/members basic salary to the Scheme.
9. He also testified that the Respondent had been deducting the contributions from the employees but had failed to remit the same to the Trustees and that after discussions, the Respondent had agreed to remit Kshs 100,000/- per month, but had reneged on the promise.
10. The witness further stated that in terms of section 53(a)(iii) of the Retirement Benefits Amendment Act, 2006, a compounded interest of 3% per month on unremitted contributions was to be applied, as a penalty.
11. In the Memorandum of Claim, the trustees were seeking Kshs 7,479,072/83 being the unremitted contributions from employees of the Respondent who are/were members of the Scheme.
12. One of the exhibits produced in Court was a letter dated 28 July 2016 (referred to in paragraph 4 above) in which the Respondent acknowledged receipt of Court Summons and seeking for more time to sort out settlement of the unremitted contributions.
13. The Trustees case being unchallenged/uncontroverted and considering that it is a liquidated claim, the Court will enter judgment for the Scheme in the sum of Kshs 7,479,072/83 with compounded monthly interest of 3% on the arrears outstanding.
14. The Respondent to pay costs of the Cause.
Delivered, dated and signed in Nakuru on this 20th day of July 2017.
Radido Stephen
Judge
Appearances
For Claimant Mr. Kamwendwa instructed by N.M. Kamwendwa & Co. Advocates
For Respondent Limo R.K. & Co. Advocates (did not file Response or attend hearing)
Court Assistant Nixon