[2018] KEELRC 2042 (KLR)
The court found that the Claimant had taken all his leave and therefore abandoned the claim for leave pay. The only remaining claim was for service pay. However, the Claimant was a contributing member of the NSSF, as evidenced by his pay slip, and under Section 35(6) of the Employment Act, such employees are not...
Source-derived case information.
- Citation
- [2018] KEELRC 2042 (KLR)
- Parties
- Claimant: Kennedy Kahindi Kazungu; Respondent: Barrels Wines & Spirits Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 565 of 2017
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- claim dismissed
- Judges
- L Ndolo
- Legal Topics
- Terminal Dues, Service Pay, Nssf Contributions, Constructive Dismissal, Leave Pay
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kennedy Kahindi Kazungu
Claimant
Barrels Wines & Spirits Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the Claimant is entitled to payment of terminal dues, specifically service pay and leave pay.
- 2 Whether the introduction of constructive dismissal in final submissions is permissible.
Ratio Decidendi
The court found that the Claimant had taken all his leave and therefore abandoned the claim for leave pay. The only remaining claim was for service pay. However, the Claimant was a contributing member of the NSSF, as evidenced by his pay slip, and under Section 35(6) of the Employment Act, such employees are not automatically entitled to service pay. The attempt to introduce constructive dismissal in final submissions was rejected as it was neither pleaded nor canvassed at trial. Consequently, the entire claim was dismissed.
Court Disposition
claim dismissed
Orders
- The Claimant's entire claim is dismissed.
- There is no order as to costs.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT MOMBASA
CAUSE NO 565 OF 2017
KENNEDY KAHINDI KAZUNGU.........................CLAIMANT
VS
BARRELS WINES & SPIRITS LIMITED........RESPONDENT
JUDGMENT
Introduction
1. The Claimant’s claim brought by a Memorandum of Claim dated 4th July 2017 and filed in court on 12th July 2017 is for payment of terminal dues. The Respondent did not file a reply in spite of due service.
2. The matter therefore proceeded for formal proof on 7th March 2018. The Claimant also filed written submissions.
The Claimant’s Case
3. The Claimant states that he was employed by the Respondent from 9th December 2004 until 10th February 2017 when he resigned. His claim is for:
a) Leave pay for 13 years.................................................Kshs. 136,500
b) Service pay for 13 years..........................................................97,500
Findings and Determination
4. The single issue for determination in this case is whether the Claimant is entitled to the remedies sought. During the hearing, the Claimant testified that he took all his leave. He therefore abandoned the claim thereon.
5. The only surviving claim is therefore the one for service pay. The Claimant produced his pay slip for January 2011 showing that he was a contributing member of the National Social Security Fund (NSSF). Section 35(6) of the Employment Act provides that employees who are members of NSSF do not have an automatic right to service pay. The claim for service pay therefore fails and is dismissed.
6. In the final submissions filed on behalf of the Claimant on 21st March 2018, an attempt was made to introduce an element of constructive dismissal. The only thing I will say is that this point was neither pleaded nor canvassed at the trial. It cannot therefore be introduced in final submissions.
7. In the end, the Claimant’s entire claim fails and is dismissed with no order for costs.
8. It is so ordered.
DATED SIGNED AND DELIVERED AT MOMBASA THIS 10THDAY OF MAY 2018
LINNET NDOLO
JUDGE
Appearance:
Mr. Nyongesa h/b Mr. Khatib for the Claimant
No appearance for the Respondent