[2014] KEELRC 963 (KLR)
The court found that the claimant's NSSF dues were duly remitted by the respondent throughout his employment. Section 35(6) of the Employment Act precludes payment of gratuity or similar terminal benefits where an employee is a member of NSSF and contributions have been made. The claimant admitted that NSSF...
Source-derived case information.
- Citation
- [2014] KEELRC 963 (KLR)
- Parties
- Claimant: George Ochieng Nyang'inja; Respondent: Vyatu Company Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Cause 241 of 2013
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- claim dismissed
- Judges
- HS Wasilwa
- Legal Topics
- Terminal Dues, Leave Allowance, Nssf Contributions, Retirement Benefits
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George Ochieng Nyang'inja
Claimant
Vyatu Company Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant is entitled to payment of terminal dues upon retirement.
- 2 Whether the claimant is entitled to leave allowance for the period claimed.
- 3 Whether remittance of NSSF dues by the employer bars the claimant from claiming gratuity under Section 35(6) of the Employment Act.
Ratio Decidendi
The court found that the claimant's NSSF dues were duly remitted by the respondent throughout his employment. Section 35(6) of the Employment Act precludes payment of gratuity or similar terminal benefits where an employee is a member of NSSF and contributions have been made. The claimant admitted that NSSF contributions were paid, and therefore, he was not entitled to the terminal dues sought. The court also noted that, since the respondent did not file a counter-claim, any amounts allegedly owed by the claimant to the respondent could not be awarded. Consequently, the claim was dismissed, and each party was ordered to bear its own costs.
Court Disposition
claim dismissed
Orders
- The claimant's case is dismissed.
- Each party will bear its own costs.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT OF KENYA AT KISUMU
CAUSE NO. 241/2013
(Before Hon. Justice Hellen Wasilwa on 30th April, 2014)
GEORGE OCHIENG NYANG'INJA ....................................... CLAIMANT
-VERSUS-
VYATU COMPANY LIMITED …................................ RESPONDENTS
JUDGMENT
The claimant herein George Ochieng Nyang'inja filed his memo of claim on 23. 8.2013 in person seeking payment of his terminal dues and leave allowance.
It is the claimant's case that he was employed by the respondents sister company Pride Enterprises in 1990. In 1996 January he was transferred to Vyatu Limited where he continued until 3. 4.2012. On this day, he wrote a letter asking to be allowed to proceed on retirement. He also asked the respondents to pay him his terminal dues. The respondents never paid those dues and that is what the claimant seeks before this court. In cross examination by counsel for the respondents, the claimant told court that he was respondents driver and at retirement he was earning Ksh 17,000/= per month. He told court that his employer used to remit NSSF dues all the time he worked. He also admitted that his wife took Ksh 26,000/= from this employer as a loan and she never paid it since 2006. He told court further that he was paid leave allowance except one of June.
The respondents on the other hand filed their memo of appearance through the firm of L. G. Menezes Advocates on 2. 10. 2013. They never filed any defence. They however called one witness who told court that the claimant left the company in 2012 and paid all his dues. They also stated that there are no more dues to pay as the claimant had his dues remitted to NSSF. They are only willing to pay him leave allowance for 2012 less what he owes them Ksh 26,000 which his wife took. That infact, it is claimant who owes them Ksh 12,649/=.
Having considered the evidence of both parties, it is apparent that indeed the claimant's NSSF dues were remitted by the company. Under Section 35 (6) of Employment Act payment of gratuity will not count where the employee is a member of the National Social Security Fund. The claimant having admitted that his NSSF dues were actually paid by the respondent, it follows that he is not entitled to what remedies he had sought. I therefore find so and dismiss his case accordingly.
Since there is no counter-claim sought by the respondents, even what is admitted as being owed, his not awarded. Each party will bear it's own costs.
HELLEN WASILWA
JUDGE
30/4/2014
Appearances:-
Claimant in person present
L. G. Menezes for respondents present
CC. Wamache