[2021] KEELRC 2008 (KLR)
The court found that the respondent's tabulation was incorrect as it was based on consolidated pay and excluded unlawful deductions, contrary to the express terms of the judgment which referred to gross pay and mandated refund of unlawful deductions. The court adopted the 2nd claimant's tabulation, finding it...
Source-derived case information.
- Citation
- [2021] KEELRC 2008 (KLR)
- Parties
- Applicant: Kenya Union of Commercial Food and Allied Workers; Applicant: Claimants in Kisumu Chief Magistrates Court Employment Case No. 408 of 2019; Respondent: Choppies Enterprises Kenya Limited; Respondent: Mr. Parin Bharatkumar Patel; Respondent: Mr. Ashwin Kshemendran; Respondent: Mr. Mithun Chulliparambil Gopalakrishnan
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 861 of 2019
- Procedural Posture
- Employment Cause / Post Judgment Ruling on Computation and Adoption of Tabulation
- Outcome
- Judgment entered for the 2nd claimant for the sum of Kshs. 751,617.37 as per the adopted tabulation.
- Judges
- DO Ogal
- Legal Topics
- Unlawful Deductions, Severance Pay, Notice Pay, Gross Vs Basic Pay, Statutory Entitlements, Judgment Enforcement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Union of Commercial Food and Allied Workers
Applicant
Claimants in Kisumu Chief Magistrates Court Employment Case No. 408 of 2019
Applicant
Choppies Enterprises Kenya Limited
Respondent
Mr. Parin Bharatkumar Patel
Respondent
Mr. Ashwin Kshemendran
Respondent
Mr. Mithun Chulliparambil Gopalakrishnan
Respondent
Procedural Posture
Employment Cause / Post Judgment Ruling on Computation and Adoption of Tabulation
Legal Issues
- 1 Whether the respondent's or the 2nd claimant's tabulation of the judgment award is correct.
- 2 Whether the computation should be based on gross pay or consolidated pay.
- 3 Whether unlawful deductions should be refunded as per the judgment.
Ratio Decidendi
The court found that the respondent's tabulation was incorrect as it was based on consolidated pay and excluded unlawful deductions, contrary to the express terms of the judgment which referred to gross pay and mandated refund of unlawful deductions. The court adopted the 2nd claimant's tabulation, finding it consistent with the judgment, and awarded the total sum claimed. The court further noted that the delivery of the ruling via electronic means was justified by the prevailing COVID-19 restrictions and in line with constitutional and statutory mandates to facilitate access to justice and avoid undue technicalities.
Court Disposition
Judgment entered for the 2nd claimant for the sum of Kshs. 751,617.37 as per the adopted tabulation.
Orders
- Each claimant is awarded the specific amount as set out in the adopted tabulation.
- Judgment is entered for the 2nd claimant in the sum of Kshs. 751,617.37.
Full Case Text
Judgment text and source record
57 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
(Before Hon. Lady Justice Maureen Onyango)
CAUSE NO. 861 OF 2019 AS CONSOLIDATED WITH
KISUMU CMELRC 408 OF 2019
KENYA UNION OF COMMERCIAL FOOD AND
ALLIED WORKERS 1ST CLAIMANT
CLAIMANTS IN KISUMU CHIEF MAGISTRATES
COURT IN EMPLOYMENT CASE NO. 408 OF 2019. .........................2ND CLAIMANT
VERSUS
CHOPPIES ENTERPRISES KENYA LIMITED...............................1ST RESPONDENT
MR. PARIN BHARATKUMAR PATEL...............................................2ND RESPONDENT
MR. ASHWIN KSHEMENDRAN......................................................3RD RESPONDENT
MR. MITHUN CHULLIPARAMBIL GOPALAKRISHNAN............4TH RESPONDENT
RULING
In the judgment delivered on 13th November 2020, the Court found that the second set of claimants, that is claimants in Kisumu Chief Magistrate Court Employment Cause No. 408 of 2019 referred to herein jointly as 2nd claimant were entitled to the following: -
- Soap allowance Kshs.100 per month.
- Difference between basic and gross pay in respect of: -
- Refund of unlawful deductions.
(i) notice pay
(ii) Severance pay
- Refund of unlawful deductions.
I have considered the tabulation of the Respondent. The same is based on consolidated pay (basic + house allowance) yet the judgment refers to gross pay. The same further excludes unlawful deductions that was to be refunded.
The 2nd Clamant on the other hand included all the items as set out in the judgment. I therefore find that the 2nd Claimant’s tabulation is the correct one and adopt the same. I thus award each of the claimants as follows: -
NAME AMOUNT (KSHS.)
1. Stephen Juma Wangira 33,296. 34
2. Paul Odhiambo Okaka 35,596. 31
3. Augustine Neto Ojowi Achando 22,690. 20
4. Godfrey Odhiambo Orem 32,436. 19
5. Delvin Otieno Owiti 29,956. 05
6. Justus Omoro 30,416. 15
7. Felix Ototi Oiruria 30,095. 91
8. Irene Amondi Odhiambo 27,475. 80
9. Pauline Nancy Atieno 48,087. 82
10. Maurice Migingo 31,716. 24
11. Jackline Atieno Oduor 39,602. 14
12. Charles Ochieng Gumba 32,516. 32
13. Gabriel Odwori Khaduli 32,516. 37
14. Richard Owidi 48,632. 20
15. Benard Odhiambo 35,276. 28
16. Millicent Regina Ilode 48,305. 19
17. Said Abuka 42,174. 00
18. Calvince Odhiambo Otieno 31,736. 18
19. Nicholas Odhiambo Owiti 32,076. 15
20. Victor Omondi Omburo 26,514. 80
21. Ian Onyango Wasonga 30,809. 80
22. Jacob Obanda 29,690. 93
TOTAL 751,617. 37
Judgment is therefore entered for the 2nd claimant in the sum of Kshs.751,617. 37/=.
DATED, SIGNED AND DELIVERED AT NAIROBI ON THIS 5TH DAY OF MARCH 2021
MAUREEN ONYANGO
JUDGE
ORDER
In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020, that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.
MAUREEN ONYANGO
JUDGE