[2016] KEELRC 1195 (KLR)
The court found that the claimant was a member of the National Social Security Fund (NSSF), as evidenced by her payslip and unchallenged by any contrary averment. Section 35(6) of the Employment Act, 2007, expressly excludes employees who are members of the NSSF from entitlement to service pay. Since the claimant...
Source-derived case information.
- Citation
- [2016] KEELRC 1195 (KLR)
- Parties
- Claimant: Christine Nafula Munialo; Respondent: Appex Security Services Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 305 of 2013
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- claim dismissed
- Legal Topics
- Service Gratuity, Nssf Contributions, Termination of Employment, Statutory Exemptions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Christine Nafula Munialo
Claimant
Appex Security Services Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant is entitled to service gratuity under section 35(5)(c) of the Employment Act, 2007.
- 2 Whether membership and contributions to the National Social Security Fund (NSSF) exclude entitlement to service pay.
Ratio Decidendi
The court found that the claimant was a member of the National Social Security Fund (NSSF), as evidenced by her payslip and unchallenged by any contrary averment. Section 35(6) of the Employment Act, 2007, expressly excludes employees who are members of the NSSF from entitlement to service pay. Since the claimant did not allege or prove that the NSSF deductions were not remitted, she fell within the statutory exclusion. Therefore, her claim for service gratuity lacked merit and was dismissed.
Court Disposition
claim dismissed
Orders
- The claim for payment of service gratuity is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS
COURT AT NAIROBI
CAUSE NO 305 OF 2013
CHRISTINE NAFULA MUNIALO……...........................................CLAIMANT
Versus
APPEX SECURITY SERVICES LIMITED...............................RESPONDENT
Mr. Mochache for the claimant
Mr Wasuna for the respondent
JUDGMENT
Consent was recorded in this suit with exception of the claim for payment of service gratuity.
Section 35(5(c) of the Employment Act, 2007, provides;
“(5) A – employee whose contract of service has been terminated under Clause (1) shall be entitled to service pay for every year worked, the terms of which shall be fixed.”
Section 35(6) provides
“This section shall not apply where an employee is a member of:
a registered pension or provident fund scheme under the Retirement Benefits Act;
a gratuity or service pay scheme established under a collective agreement;
any other scheme established and operated by an employer whose terms are more favourable than those of the pay scheme established under this section; and
the National Social security Fund.”
From the payslip of the claimant for the month of May 2012, produced by the claimant herself, she was a member of the National Social Security Fund (NSSF) and the respondent made monthly deductions of Kshs.200 from her salary for onward transmission to the fund. The claimant has not averred in the memorandum of claim that these deductions were not paid to NSSF together with the employer portion of the contribution to the fund.
Accordingly, the claim for payment of severance pay has no merit and the same is dismissed.
Since the parties resolved most of the issues for determination amicably, the court makes no order as to costs.
Dated and delivered at Nairobi this 6th day of May, 2016.
MATHEWS NDERI NDUMA
PRINCIPAL JUDGE