[2017] KEELRC 1980 (KLR)
The court held that it had jurisdiction to hear the matter under section 87 of the Employment Act, 2007 and section 12(1)(a) of the Employment and Labour Relations Court Act, regardless of union involvement. The claimant failed to prove entitlement to overtime, paternity leave, or pro-rated annual leave due to lack...
Source-derived case information.
- Citation
- [2017] KEELRC 1980 (KLR)
- Parties
- Claimant: Daniel Mwanje Lihanda; Respondent: Eldochem Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Cause 14 of 2017
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Claim partly allowed; claimant awarded house allowance only.
- Judges
- MSA Makhandia
- Legal Topics
- Breach of Employment Contract, House Allowance Entitlement, Overtime Claims, Leave Entitlements, Jurisdiction of Elrc
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Mwanje Lihanda
Claimant
Eldochem Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the cause is incompetent for lack of union involvement.
- 2 Whether the claimant is entitled to overtime pay.
- 3 Whether the claimant had pending or pro-rated leave at separation.
Ratio Decidendi
The court held that it had jurisdiction to hear the matter under section 87 of the Employment Act, 2007 and section 12(1)(a) of the Employment and Labour Relations Court Act, regardless of union involvement. The claimant failed to prove entitlement to overtime, paternity leave, or pro-rated annual leave due to lack of evidence regarding working hours, leave requests, or relevant dates. However, the employment contract and pay slips did not indicate that the claimant's remuneration was consolidated or included house allowance. Therefore, under section 31 of the Employment Act, 2007, the claimant was entitled to a house allowance at 15% of his basic wage for the period served. The court...
Court Disposition
Claim partly allowed; claimant awarded house allowance only.
Orders
- The respondent shall pay the claimant Kshs 231,750 as house allowance for the period served.
- All other claims are dismissed.
Full Case Text
Judgment text and source record
44 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT ELDORET
CAUSE NO. 14 OF 2017
DANIEL MWANJE LIHANDA CLAIMANT
v
ELDOCHEM LIMITED RESPONDENT
JUDGMENT
1. The Claimant framed some 13 questions as arising for the Court’s determination while the Respondent proposed 7 Issues.
2. The Cause was heard on 30 October 2017 when the Claimant and a Supervisor with the Respondent testified.
3. The Claimant filed his submissions on 30 October 2017 while the Respondent filed its submissions on 31 October 2017.
4. The Court has considered the pleadings, evidence and submissions and come to the view that the Issues for determination can be condensed into 5 to wit, whether the Cause is incompetent,whether the Claimant worked overtime, whether the Claimant had pending leave/pro rata leave at point of separation, whether Claimant’s remuneration included house allowance and appropriate remedies.
5. Before addressing the Issues as identified, it is worth noting that the Claimant resigned from employment for personal reasons and therefore this Cause is not about unfair termination of employment but breach of contract (entitlements during employment).
Whether Cause is incompetent
6. The Respondent appeared to suggest that the jurisdiction of this Court is restricted to disputes where trade unions are involved.
7. That contention is not only misguided but is also legally misplaced in light of the provisions of section 87 of the Employment Act, 2007 and section 12(1)(a) of the Employment and Labour Relations Courts Act.
Overtime
8. Although testifying that he worked from 9. 00am to beyond 6. 00pm, the Claimant did not disclose the contractually agreed working hours or the prescribed working hours in the industry the Respondent operated in to be entitled to overtime pay.
9. Different Regulation of Wages Orders prescribe different working hours and without evidence as to the applicable Order or indeed if there was contractual agreement on working hours, the Court is unable to determine whether the Claimant worked overtime without pay.
Paternity leave and pro-rated annual leave
10. Paternity leave becomes due when a male employee gets a baby.
11. In the instant case, the Claimant did not disclose when he got the babies, details of the babies or whether he informed the Respondent of the babies or sought paternity leave and was denied.
12. The Claimant failed to proof this head of claim to the requisite standard.
13. Under pro-rated leave, the Claimant pleaded an entitlement to 8 months equivalent of leave but did not make any reference to the same during testimony.
14. Without the evidential foundation to the head of claim, the Court is unable to accept that the Claimant had pending leave by time he resigned.
15. If the basis had been laid, the Respondent should have been expected to produce employment records for the Claimant and or controvert such evidence.
House allowance
16. The employer’s first responsibility is to provide housing accommodation and where the accommodation is not provided, an allowance to cover rent ought to be paid.
17. In terms of section 31 of the Employment Act, 2007, where accommodation is not provided, the contract of employment should specify how much of the remuneration is for accommodation unless it is expressed that the remuneration was consolidated.
18. The contract issued to the Claimant did not indicate whether the remuneration was consolidated. The pay slips equally do not show whether there was an element of house allowance.
19. In the circumstances, the Court concludes that the remuneration paid to the Claimant did not include house allowance and finds that the Claimant was entitled at least 15% of the basic wage as house allowance.
20. The Claimant’s remuneration was a constant Kshs 15,000/- and for the 103 months served, he should have been paid Kshs 231,750/-.
Appropriate remedies/Conclusion
21. Arising from the foregoing, the Court finds for the Claimant only in respect of the head of claim for house allowance.
22. The Court therefore awards the Claimant
(i) House Allowance Kshs 231,750/-
23. The other heads of relief are dismissed.
24. Claimant to have costs on half scale.
Delivered, dated and signed in Eldoret on this 3rd day of November 2017.
Radido Stephen
Judge
Appearances
For Claimant Mrs. Khayo instructed by Nyamwega & Co. Advocates
For Respondent Mr. Kagunza instructed by Kigen & Co. Advocates
Court Assistants Nixon/Etyang