[2018] KEELRC 523 (KLR)
The court found that the claimant was a member of the National Social Security Fund, and therefore, by operation of section 35(6) of the Employment Act, 2007, he was not entitled to service pay. There was no contractual provision entitling the claimant to service pay beyond the statutory framework. The respondent...
Source-derived case information.
- Citation
- [2018] KEELRC 523 (KLR)
- Parties
- Claimant: Joseph Mwanzia Mutie; Respondent: Khetshi Dharamshi & Co. Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 409 of 2013
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- claim dismissed with costs
- Judges
- B Ongaya
- Legal Topics
- Service Pay, Employment Termination, Statutory Benefits, Nssf Membership
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Mwanzia Mutie
Claimant
Khetshi Dharamshi & Co. Ltd
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant is entitled to service pay under section 35(5) of the Employment Act, 2007.
- 2 Whether the claimant's membership in the National Social Security Fund excludes entitlement to service pay under section 35(6) of the Act.
- 3 Whether the respondent is liable to pay the claimed amount for service or severance dues.
Ratio Decidendi
The court found that the claimant was a member of the National Social Security Fund, and therefore, by operation of section 35(6) of the Employment Act, 2007, he was not entitled to service pay. There was no contractual provision entitling the claimant to service pay beyond the statutory framework. The respondent had clarified this position prior to the filing of the suit. Accordingly, the court held that there was no justifiable reason to disturb the respondent's submissions and dismissed the claimant's claim with costs.
Court Disposition
claim dismissed with costs
Orders
- The claimant's memorandum of claim is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NAIROBI
CAUSE NO.409 OF 2013
JOSEPH MWANZIA MUTIE........................................CLAIMANT
-VERSUS
KHETSHI DHARAMSHI &CO. LTD.....................RESPONDENT
(Before Hon. Justice Byram Ongaya on Friday 23rd November, 2018)
JUDGMENT
The claimant filed the memorandum of claim on 26. 03. 2013 through Gakoi Maina & Company Advocates. The prayer is for:
a) Payment of Kshs. 406, 037. 00 being service or severance dues and benefits.
b) Costs of the claim and interest.
The memorandum of response was filed on 05. 06. 2013 through Macharia – Mwangi & Njeru Advocates. The respondent prayed that the claimant’s claim be dismissed with costs.
The undisputed facts are as follows:
a) On 01. 02. 1998 the respondent employed the claimant as an Accounts Assistant and later promoted him to Supervisor Accounts Department.
b) At termination of the contract the claimant earned Kshs. 43, 504. 00 per month.
c) On 01. 02. 2012 the claimant served the respondent a one month notice of termination of the contract of service as per terms of service. The termination took effect on 29. 02. 2012 and the respondent computed the claimant’s final dues at Kshs. 6, 554. 00.
d) The claimant had served the respondent for 14 years as at the time of termination.
The claimant claims that the respondent violated section 35(5) of the Employment Act, 2007 by failing to pay service pay for the 15 years of service. The respondent’s case is that service pay was expressly excluded in terms of section 35(6) of the Act because it was not in dispute that the claimant was a member of the National Social Security Fund and the parties not having a contractual term to pay service pay beyond the cited statutory provisions. The respondent further states that the clarification was made prior to filing of the suit and the claimant should pay costs of the suit.
The Court returns that there is no justifiable reason to disturb the respondent’s submissions and the Court finds accordingly.
In conclusion judgment is hereby entered for the respondent against the claimant for dismissal of the claimant’s memorandum of claim with costs.
Signed, datedand deliveredin courtat Nairobithis Friday 23rd November, 2018.
BYRAM ONGAYA
JUDGE