[2019] KEELRC 766 (KLR)
The court found that the claimant's employment and subsequent resignation were uncontested, and the respondent failed to pay terminal dues as required by law. The claimant was not registered with NSSF or any retirement scheme, entitling him to service pay under Section 35(5) of the Employment Act. The evidence...
Source-derived case information.
- Citation
- [2019] KEELRC 766 (KLR)
- Parties
- Claimant: Kenneth Otieno Siro; Respondent: Florence Manea Muyundo t/a Ray of Health Centre and Community Centre
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1108 of 2018
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- judgment_for_claimant
- Judges
- DO Ogal
- Legal Topics
- Terminal Dues, Service Pay, Leave Pay, House Allowance, Minimum Wage, Underpayment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenneth Otieno Siro
Claimant
Florence Manea Muyundo t/a Ray of Health Centre and Community Centre
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant is entitled to terminal dues including service pay, leave pay, and house allowance underpayments.
- 2 Whether the respondent failed to pay the claimant as per statutory minimum wage requirements.
- 3 Whether the claimant is entitled to costs and interest.
Ratio Decidendi
The court found that the claimant's employment and subsequent resignation were uncontested, and the respondent failed to pay terminal dues as required by law. The claimant was not registered with NSSF or any retirement scheme, entitling him to service pay under Section 35(5) of the Employment Act. The evidence established that the claimant was not granted annual leave, justifying payment in lieu for the period worked. The court further determined that the claimant's salary was below the statutory minimum wage from 2011 to 2016, resulting in underpayment. The employment contracts' 'all-inclusive' salary clause did not override statutory minimum wage requirements. The court calculated and...
Court Disposition
judgment_for_claimant
Orders
- The respondent shall pay the claimant Kshs. 55,384.60 as service pay for 12 years.
- The respondent shall pay the claimant Kshs. 77,538.50 as leave pay.
Full Case Text
Judgment text and source record
62 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE 1108 OF 2018
(Before Hon. Lady Justice Maureen Onyango)
KENNETH OTIENO SIRO.....................................................................CLAIMANT
VERSUS
FLORENCE MANEA MUYUNDO T/A RAY OF HEALTH
CENTRE ANDCOMMUNITY CENTRE.........................................RESPONDENT
JUDGMENT
The Claimant herein, acting in person, filed a Memorandum of Claim on 2nd July 2018. He avers that he was employed by the Respondent as a security guard in 2004 and worked until his resignation on 5th December 2016. It is his averment that the Respondent has failed to pay his terminal dues despite having agreed to pay him Kshs. 48,000 during a mediation session conducted by the Kenya Human Rights Commission.
He seeks the following reliefs:
(i) The sum of Kshs.288,000. 00 as particularised in the claim.
(ii) Costs of this suit.
(iii) Interest in (i) and (ii) above.
(iv) Any other relief as the Court may deem just.
The Respondent did not enter appearance in the suit or file a defence thus the Claim proceeded as an undefended claim with the Claimant testifying on his own behalf.
The Claimant testified that he was employed by the Respondent in 2004 earning a salary of Kshs.8,000. That he was not registered with NSSF and NHIF. He testified that on 5th December 2016 he wrote to the Respondent informing her of his resignation and was later stopped from working on 14th January 2017. He testified that despite discussions with the Respondent on the payment of Kshs.48,000 as his terminal dues, he was not paid the said amount. He urged the Court to award the reliefs sought.
Determination
The uncontested facts of this case are that the Claimant was employed by the Respondent vide the employment contract dated 8th May 2004 on fixed term contract which commenced on 8th May 2006 to 8th August 2006. The contract was thereafter renewed severally. The Claimant resigned from employment on 5th December 2016.
The Respondent neither entered appearance nor filed a defence thus the Claimant’s evidence was uncontroverted.
The issue for determination is whether the Claimant is entitled to terminal dues in the sum of Kshs.288,000 being service pay at Kshs.48,000, leave pay Kshs.67,200 and house allowance at Kshs.172,800.
Service Pay
The Claimant is entitled to service pay for the period of employment being 10 years from 2004 to 2016 by virtue of Section 35(5) as he was not a member of NSSF or any other retirement or gratuity scheme calculated at Kshs.8,000/26 x 15 days x 12 years = Kshs.55,384. 60.
Leave Pay
The letter from the respondent dated 17th January 2011 states that the Claimant was entitled to 7 days off starting the year 2011 and compensation for holidays worked. The letter did not make any reference to leave days. Therefore the Claimant’s claim for leave pay is valid. However, this is to be calculated for the period between 8th May 2004 when he commenced employment to the date when he left employment being 14th January 2017 at 21 days per year as follows Kshs.8,000/26 x 252 days = Kshs.77,538. 50.
House Allowance
The Claimant prayed for house allowance of Kshs.172,800. However
the Contracts of employment dated 8th May 2004 and 1st October 2006 provide that his salary was consolidated and all-inclusive.
Although the salary was expressed to be all inclusive, the amount paid was below the minimum rate which was as follows –
2004 – 4,335 + 15% House allowance = 4,985. 25
2005 – 4,638 + 15% House allowance = 5,333. 70
2006 – 5,195 + 15% House allowance = 5,974. 25
2007 – 5,195 + 15% House allowance = 5,974. 25
2008 – 5,195 + 15% House allowance = 5,974. 25
2009 – 6,130 + 15% House allowance = 7,049. 50
2010 – 6,743 + 15% House allowance = 7,754. 45
2011 – 7,586 + 15% House allowance = 8,723. 90
2012 – 8,579. 80 + 15% House allowance = 9,866. 80
2013 – 9,780. 95 + 15% House allowance = 11,247. 00
2014 – 9,780. 95 + 15% House allowance = 11,247. 00
2015 – 10,954. 70 + 15% House allowance = 12,597. 90
From the foregoing the claimant was underpaid from 2011 when the minimum gazetted consolidated salary was as follows –
2011
(8,723. 90 less paid shs.7,500) x 12 = Kshs.14,686. 80
2012
(9,866. 80 less paid shs.8,000) x 12 = Kshs.22,401. 60
2013 and 2014
(11,247 less paid shs.8,000) x 24 = Kshs.77,928
2015 and 2016
(12,597. 80 less paid shs.8,000) x 24 = Kshs.110,349. 60
Total underpayments Kshs.225,366. 60/=.
Conclusion
Judgment is entered for the claimant as follows –
1. Service pay for 12 years Kshs.55,384. 60
2. Leave pay Kshs.77,538. 50
3. House allowance underpayments (calculated as underpayments of consolidated salary)from 2011 – 2016 Kshs.225,366. 60
Total Award Kshs.358,290. 00
The Claimant is awarded costs of the suit and interest at court rates from date of judgment till payment in full.
DATED, SIGNED AND DELIVERED AT NAIROBI ON THIS 27TH DAY OF SEPTEMBER 2019
MAUREEN ONYANGO
JUDGE