[2019] KEELRC 2379 (KLR)
The court found that the claimant had proved his entitlement to unpaid house allowance, underpayment of wages, annual leave pay, and payment in lieu of notice, as these elements were not factored into his monthly payments and were supported by documentary evidence. The court rejected the claim for overtime due to...
Source-derived case information.
- Citation
- [2019] KEELRC 2379 (KLR)
- Parties
- Claimant: Hirkena Athonto Elemo; Respondent: Jiangxi Zhongmei Engineering Construction Company Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Cause 439A of 2017
- Procedural Posture
- Employment Claim / Judgment
- Outcome
- Claim partly allowed. Judgment for the claimant for underpayment, leave pay, notice pay, house allowance, and costs.
- Judges
- AN Makau
- Legal Topics
- Unlawful Termination, Underpayment of Wages, House Allowance, Leave Entitlement, Notice Pay
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Hirkena Athonto Elemo
Claimant
Jiangxi Zhongmei Engineering Construction Company Limited
Respondent
Procedural Posture
Employment Claim / Judgment
Legal Issues
- 1 Whether the claimant was unlawfully terminated from employment.
- 2 Whether the claimant was underpaid and denied statutory entitlements such as house allowance, leave pay, and notice pay.
- 3 Whether the claimant is entitled to costs and other reliefs sought.
Ratio Decidendi
The court found that the claimant had proved his entitlement to unpaid house allowance, underpayment of wages, annual leave pay, and payment in lieu of notice, as these elements were not factored into his monthly payments and were supported by documentary evidence. The court rejected the claim for overtime due to lack of specific proof regarding hours worked and dates. The respondent's failure to defend the suit resulted in liability being established, but the claimant still bore the burden of proving the quantum of each claim. The court awarded the sums for underpayment, leave, notice, and house allowance, but not for overtime.
Court Disposition
Claim partly allowed. Judgment for the claimant for underpayment, leave pay, notice pay, house allowance, and costs.
Orders
- Respondent to pay claimant Kshs. 384,184 for underpayment of wages.
- Respondent to pay claimant Kshs. 52,166 for annual leave pay.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT & LABOUR RELATIONS COURT OF KENYA
AT NYERI
CASE NO. 439A OF 2017
HIRKENA ATHONTO ELEMO..................................................CLAIMANT
VERSUS
JIANGXI ZHONGMEI ENGINEERING
CONSTRUCTION COMPANY LIMITED...........................RESPONDENT
JUDGMENT
1. The Claimant sued the Respondent seeking relief for the unlawful termination of his contract of service. He averred that he was employed as a guard and that he worked from 2012 earning Kshs. 12,000/- a month. He stated that he had no rest days or leave days and had to report at 6. 00pm and leave at 8. 00am. He worked for 2 years and was not heard prior to the dismissal. He thus sought payment for the overtime worked, underpayment and leave allowance as well as house allowance. He also sought costs of the suit.
2. The Respondent neither entered appearance nor filed a defence in the cause. The case thus proceeded undefended. The Claimant stated that the Respondent underpaid him and that he was not paid any house allowance or for overtime worked. He produced an agreement reached between the Kenya Building Construction Timbers and Furniture Union (KBCTFU) and the Respondent, and a letter from the Deputy County Commissioner Marsabit Central Sub County to the site manager of the Respondent on the Marsabit-Turbi Road project. He testified that the underpayment was not rectified despite the letter and the agreement reached and that the Respondent did not adhere to the wages guideline.
3. The Claimant filed submissions and stated that the liability against the Respondent was 100% as the Respondent had failed to defend as held in the case of Regina Mwikali Wilson vStephen M. Gichuhi &Another [2015] eKLRwhich cited with approval the Court of Appeal decision in the case of Felix Mathenge vKenya Power &Lighting Co. Ltd [2008] eKLRthat the question of liability was moot upon entry of interlocutory judgment and only the issue of quantum remained. The Claimant thus prayed for the payment of the sums due for the underpayment and the unpaid house allowance.
4. The Claimant had a duty, a burden to prove the claims he made with particularity. He therefore cannot rely wholesale on the dicta of the Court of Appeal in the case of Felix Mathenge vKenya Power &Lighting Company Ltd (supra) cited in support of the assertion that all I had to do was assess damages. The court finds that the claims the Claimant proved was on house allowance, the underpayment, leave and the absence of notification before termination. He thus is entitled to an award on this claim of unpaid house allowance since this element of his pay was not factored in the monthly payments. He is also entitled to the unpaid leave dues, pay in lieu of notice as well as the underpayment of salary. He failed to prove the other claims as he did not show the overtime worked and the specific dates he was at work and was not paid for the extra hours put in. He thus is only entitled to the following reliefs:-
i. Underpayment of wages – Kshs. 384,184/-
ii. Annual leave pay – Kshs. 52,166/-
iii. Payment in lieu of notice – Kshs. 34,777/-
iv. Unpaid house allowance – Kshs. 51,750/-
v. Costs of the suit
It is so ordered.
Dated and delivered at Nyeri this 12th day of February 2019
Nzioki wa Makau
JUDGE