[2014] KEELRC 957 (KLR)
The court found that the claimants' contracts did not consolidate house allowance into their basic wage or salary, and therefore, under Section 31 of the Employment Act, they were entitled to a separate house allowance. The court rejected the respondent's argument to limit the claim to three years, holding that the...
Source-derived case information.
- Citation
- [2014] KEELRC 957 (KLR)
- Parties
- Applicant: Ebrahim Ochieng Othuon & 2 Others; Respondent: Chemilil Sugar Co. Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Cause 15 of 2013
- Procedural Posture
- Employment Claim / Ruling on Outstanding Issue (house Allowance) After Consent Judgment
- Outcome
- Claim allowed in respect of house allowance for all claimants as per the filed schedule.
- Judges
- HS Wasilwa
- Legal Topics
- House Allowance, Employment Contracts, Statutory Entitlements, Terminal Dues
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ebrahim Ochieng Othuon & 2 Others
Applicant
Chemilil Sugar Co. Ltd
Respondent
Procedural Posture
Employment Claim / Ruling on Outstanding Issue (house Allowance) After Consent Judgment
Legal Issues
- 1 Whether the claimants are entitled to payment of house allowance under Section 31 of the Employment Act, 2007.
- 2 Whether the house allowance should be calculated for the entire period worked or limited to three years as argued by the respondent.
Ratio Decidendi
The court found that the claimants' contracts did not consolidate house allowance into their basic wage or salary, and therefore, under Section 31 of the Employment Act, they were entitled to a separate house allowance. The court rejected the respondent's argument to limit the claim to three years, holding that the failure to pay house allowance was the respondent's omission and that terminal dues are calculated based on the entire period worked. The court ordered payment of house allowance at 15% of salary for each month worked, as per the schedule filed by the claimants.
Court Disposition
Claim allowed in respect of house allowance for all claimants as per the filed schedule.
Orders
- Respondent to pay house allowance to each claimant as per the schedule filed in court on 25.3.2014, totaling KES 5,896,617.48.
- Costs to be borne by the respondent.
Full Case Text
Judgment text and source record
73 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT OF KENYA AT KISUMU
CAUSE NO. 15/2013
(BEFORE HON. JUSTICE HELLEN WASILWA ON 30TH APRIL, 2014)
EBRAHIM OCHIENG OTHUON & 2 OTHERS .............. CLAIMANTS
-VERSUS-
CHEMILIL SUGAR CO. LTD …............................. RESPONDENTS
R U L I N G
The claimants and respondents recorded a consent before this court on 28. 2.2014 which consent was endorsed by the court. One issue however remained pending, the issue of payment house allowance to the claimants herein. The parties agreed that they would submit on this issue and this court will make a determination. The parties have now filed their submissions. The issue of house allowance is in this court's view already determined by law under Section 31 of the Employment Act 2007 which states that:-
“An employer shall at all times, at his own expense provide reasonable housing accommodation for each of his employees either at or near to the place of employment, or shall pay to the employee such sufficient sum as rent, in addition to the wages or salary of the employees, as will enable the employee to obtain reasonable accommodation”.
The exception is where the contract of service contains a provision which consolidates as part of the basic wage on salary of the employee, an element intended to be used by the employee to provide himself with housing accommodation---”
In this current case, the contracts of service of the claimants did not provide a consolidated sum as part of the basic wage or salary as an element intended to be used by the employee as rent.
That being the case, it is the finding of this court that each claimant is entitled to payment of house allowance. Practice has over the years had courts calculate house allowance at 15% of the salary or wage of an employee. The claimants have made their submissions based on the years each claimant worked. The respondents submitted that this should be limited to three years which is the basic period an employer is required to keep records of employee under the Employment Act.
The argument by the respondent cannot suffice here because it is due to their omission to pay house allowance to the claimants that this matter is under adjudication by court. Moreover when calculating terminal dues, this is based on all years worked.
I find that the claimants are entitled to payment of their house allowance at 15% for each month for all the time they have worked. The parties have already agreed on the period during which each claimant worked and this was the basis upon which the consent of 28. 2.2014 was made. Based on this calculation, I allow and order that the claimants be paid house allowance as per the Scheduled prepared by the claimants and filed in court on 25. 3.2014 as follows:-
No. Name House Allowance
1. Dan Ouma Ogombi 169,951. 22
2. Kennedy Sera 141,765. 72
3. Robert Ogero Nyakundi 189,858. 24
4. Amos Kipngetich Kirui 61,925. 76
5. Joash O. Samo 161,511. 48
6. Joshua O. Rabel 163,823. 40
7. Philip A. Gaya 72,039. 24
8. Dan O. Ouma 136,646. 64
9. Daniel O. Khabera 97,152. 12
10. William O. Muga 132,331. 68
11 Francis O. Ong'owo 180,399. 96
12 Elly O. Odeny 167,963. 96
13 Reagan O. Aguta 58,125. 60
14 Hezekiah P. Angana 204,352. 20
15 Daniel O. Owino 52,846. 56
16 Nicson Kiplagat 92,936. 14
17 Reuben A. Akunga 109,636. 02
18 Isaiah M. Nyangau 42,906. 24
19 Kefa M. Onyoni 52,846. 56
20 Kelvin O. Nunda 162,138. 60
21 Antony O. Ogoda 201,272. 76
22 Caleb O. Olweny 116,176. 32
23 Biguti Josephat 98,574. 84
24 Ebrahim Othuon 159,564. 60
25 George O. Omino 110,054. 88
26 Maurice O. Auma 52,846. 56
27 Charles O. Wagonga 172,455. 66
28 Duncan O. Menya 134,049. 24
29 Stephen O. Obunga 106,989. 48
30 Edwin O. Omollo 97,152. 12
31 Irene K. Oggere 108,791. 28
32 George O. Ochieng 152,085. 96
33 James O. witi 93,492. 36
34 Raphael O. Olango 134,334. 72
35 John O. Tinga 115,174. 80
36 James O. Opondo 161,811. 00
37 Fredrick Opata 121,268. 16
38 William O. Otieno 132,331. 68
39 George A. Magero 72,039. 24
40 Godfrey K. Adie 150,529. 86
41 Kennedy M. O. O. Omollo 164,429. 46
42 Rasto O. Ojowi 70,462. 08
43 Pilip A. Ingati 134,058. 60
44 Carren A. Odhiambo 81,722. 16
45 Pacifica Mary Aluoch 208,650. 78
46 Joseph Njoroge 130,134. 42
47 Caleb O. Osiko 111,444. 84
48 Millicent A. Ombetle 53,801. 28
TOTAL 5,896,617. 48
Costs be borne by the respondents.
HELLEN WASILWA
JUDGE
30/4/2014
Appearances:-
Amondi for Claimants present
Muasya for respondents present
CC. Wamache