[2020] KEELRC 1707 (KLR)
The court found that the claimant's suit was undefended and that the respondent failed to adduce any evidence to rebut the claimant's assertions. The court held that only claims within the three-year limitation period preceding the filing of the suit were actionable. The claimant was found to have proved entitlement...
Source-derived case information.
- Citation
- [2020] KEELRC 1707 (KLR)
- Parties
- Claimant: Julius Okumu Machio; Respondent: Syekumulo Primary School
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Cause 24 of 2018
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- judgment for claimant in part
- Judges
- MN Nduma
- Legal Topics
- Unlawful Retirement, Terminal Benefits, Overtime Pay, Rest Days, House Allowance, Service Gratuity
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Julius Okumu Machio
Claimant
Syekumulo Primary School
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant was unlawfully retired on grounds of age.
- 2 Whether the claimant is entitled to terminal benefits including service gratuity, unpaid rest days, public holidays, house allowance, and leave days.
- 3 Whether the claims are time-barred under the three-year limitation period for employment claims.
Ratio Decidendi
The court found that the claimant's suit was undefended and that the respondent failed to adduce any evidence to rebut the claimant's assertions. The court held that only claims within the three-year limitation period preceding the filing of the suit were actionable. The claimant was found to have proved entitlement to service gratuity, unpaid rest days, public holidays, house allowance, and leave days for the three-year period prior to filing suit. The claim for salary arrears was dismissed for lack of proof. Judgment was entered in favour of the claimant for the specified terminal benefits, with interest and costs awarded.
Court Disposition
judgment for claimant in part
Orders
- The respondent shall pay the claimant Kshs. 14,400 as service gratuity.
- The respondent shall pay the claimant Kshs. 14,400 for unpaid rest days for 48 weeks over three years.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT BUNGOMA
CAUSE NO. 24 OF 2018
JULIUS OKUMU MACHIO….………………..………...………………..…... CLAIMANT
VERSUS
SYEKUMULO PRIMARY SCHOOL………………....…..………….…… RESPONDENT
JUDGMENT
1. The claimant was employed by the respondent as a watchman from August 2008 and worked continuously until 2016 when he was retired on grounds of age.
2. The claimant testified that during the entire period he worked from 6 am in the morning to 6 pm in the evening manning the gate of the school among other duties. That he was not paid overtime for the extra hours worked daily. That he worked 7 days a week and was not paid for one rest day not taken per week. That he was paid Kshs. 3,000 per month and was thus underpaid for the entire period. That the claimant did not go on leave for the entire eight (8) years period worked. That he was not paid house allowance and was not paid service pay upon retirement. The claimant prays to be awarded as prayed.
3. The respondent did not testify in defence of the suit despite that officials of the school were present in court on the day the matter was heard. The respondent had however filed a reply to the statement of claim after the claimant’s case had been heard and closed on 16th September 2019 without leave of court. The averments in the reply to the statement of claim do not constitute evidence in rebuttal to the suit.
4. The suit is undefended. The suit was filed on 3rd February 2018 and the claimant was retired in August 2016. The claims that go beyond three years limitation period are time barred and the court lacks jurisdiction to award the specific claims.
5. Accordingly, the court finds that the claimant has proved on a balance of probabilities that he is entitled to payment of all the terminal benefits set out under paragraph 5 of the statement of claim since the claimant is bound by his pleadings except the claim for salary arrears limited to three years period from the date of filing suit.
6. Judgment is entered in favour of the claimant against the respondent as follows:
(a) Service gratuity in the sum of Kshs. 14,400 being equivalent of half salary for each completed year of service.
(b) Kshs. 14,400 being unpaid rest days for 48 weeks for three years.
(c) Kshs. 2,400 being unpaid public holidays worked for three years.
(d) Kshs. 14,400 being unpaid house allowance for three years.
(e) Kshs. 7,800 being unpaid 21 leave days for 3 years.
The claim for salary arrears has not been proved and is dismissed.
Total award is Kshs. 41,400.
(f) The award is payable with interest at court rates from date of filing suit till payment in full.
(g) Costs of the suit.
Judgment Dated, Signed and delivered this 29th day of January , 2020
Mathews N. Nduma
Judge
BUNGOMA
Appearances
Claimant in person
Wamalwa Simiyu and Company for Respondent
Chrispo – Court clerk.