[2017] KEELRC 707 (KLR)
The court found that while the applicant had discovered and presented an internal memo evidencing entitlement to gratuity and outstanding leave, the claim for gratuity was not tenable because the claimant was a member of NSSF, as per Section 35(6)(d) of the Employment Act, 2007. However, the claim for outstanding...
Source-derived case information.
- Citation
- [2017] KEELRC 707 (KLR)
- Parties
- Applicant: Kenya Union of Employees of Voluntary and Charitable Organisations (KUEVACO); Respondent: Nairobi Pentecostal Church: Christ Is The Answer Ministries (NPC-CITAM)
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1908 of 2011
- Procedural Posture
- Review Application / Ruling on Application for Review of Judgment
- Outcome
- application partly allowed
- Judges
- HS Wasilwa
- Legal Topics
- Review of Judgment, Gratuity Entitlement, Outstanding Leave Pay, Unauthorized Salary Deductions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Union of Employees of Voluntary and Charitable Organisations (KUEVACO)
Applicant
Nairobi Pentecostal Church: Christ Is The Answer Ministries (NPC-CITAM)
Respondent
Procedural Posture
Review Application / Ruling on Application for Review of Judgment
Legal Issues
- 1 Whether the applicant has established grounds for review of the judgment under the Employment and Labour Relations Court rules.
- 2 Whether the claimant is entitled to gratuity and outstanding leave pay based on new evidence.
- 3 Whether the respondent was authorized to deduct salary advance from the claimant's final dues.
Ratio Decidendi
The court found that while the applicant had discovered and presented an internal memo evidencing entitlement to gratuity and outstanding leave, the claim for gratuity was not tenable because the claimant was a member of NSSF, as per Section 35(6)(d) of the Employment Act, 2007. However, the claim for outstanding leave pay was supported by the evidence and thus allowed. The court also held that the deduction of Kshs.41,489 as salary advance from the claimant's final dues was unauthorized and should not have been made. The application for review was therefore allowed in part, with the judgment clarified to include the outstanding leave allowance and to reiterate the prohibition of...
Court Disposition
application partly allowed
Orders
- The applicant is awarded Kshs.44,811.03 as outstanding leave allowance for 17 days.
- The total claim awarded is clarified as Kshs.1,373,942.03 less statutory deductions.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
EMPLOYMENT AND LABOUR RELATIONS COURT ATNAIROBI
CAUSE NO. 1908 OF 2011
(BEFORE HON. LADY JUSTICE HELLEN S. WASILWA ON 18TH SEPTEMBER, 2017)
KENYA UNION OF EMPLOYEES OF VOLUNTARY
AND CHARITABLE ORGANISATIONS (KUEVACO)………..…CLAIMANT
VERSUS
NAIROBI PENTECOSTAL CHURCH:
CHRIST IS THE ANSWER MINISTRIES (NPC-CITAM)......RESPONDENT
RULING
1. The application before Court is one dated 6. 6.2016 where the Applicant Claimant seeks an order for review of this Court’s judgement dated 29/10/2015.
2. The Applicant has sought a review of the judgement on the grounds that there is discovery of important matter/evidence which was not in the Applicant’s knowledge at time of initial hearing and that there were areas in the judgment which require clarification and that there are sufficient reasons for review.
3. The 1st ground for this application is that at paragraph 2(a) (i) 9 of the Amended Statement of Claim dated 20th August 2013 written final submission the Grievant right to gratuity, the Respondent offered to pay 332,515. 05 as per Respondents’ Internal Memo to her dated 11. 3.2013 appearing as Appendix KUEVCACO -05. The Applicant states that they inadvertently omitted to make this prayer.
4. The Applicant also aver that they had sought payment of leave and in paragraph 9 of the Judgement, the Hon. Court alluded to this that the amount due was computed at 44,811. 03 as per Respondents Internal Memo dated 11. 3.2013.
5. The Applicant further avers that in awarding the Grievant prayers sought, this Court inadvertently used 63,262. 63 as her gross salary instead of 72,751 as per Memo of 11. 3.2013.
6. The Applicant has averred that the Court exercised its discretion unfairly by not granting the Grievant gratuity and outstanding leave on record.
7. The Applicant thus wants this Court to make a further award for the Claimant of Kshs.332,515. 05 for gratuity and Kshs.44,811. 03 for 17 days outstanding leave.
8. On the prayer of the judgement requiring clarification, the Applicant contends that the Respondent deducted 41,489/= as salary advance from total payable amount ordered by Court. The Applicant requires clarification on this. The Applicant also requires clarification on costs payable.
9. The Applicant submits that there are sufficient reasons requiring review of the judgment as prayed and requires the judgment review to include 377,326/= for gratuity and leave, Kshs.41,489/= wrongly deducted by the Respondent as advance salary plus costs of the suit.
10. Despite being served and despite knowledge of the existence of this application for review, the Respondent failed to file any reply or respond as ordered by Court on 19. 1.2017 and 23. 2.2017. The application is therefore unopposed.
11. Considering the prayers sought, the issue of gratuity, the Applicant has referred to an Internal Memo dated 11. 3.2013 which computed Claimant’s benefits and this included 332,515. 05 gratuity and 17 days outstanding leave of Kshs.44,811. 03. This prayer was however not made in the claim filed in Court. It was however this Court’s consideration that the Claimant being a member of NSSF was not entitled to any gratuity payment as envisaged under Section 35(6) (d) of the Employment Act 2007. The claim for gratuity is therefore still not tenable.
12. On payment of outstanding leave, this having been alluded to in the Internal Memo now before me, I find the Claimant is entitled to the payment of the same.
13. On deductions made to the Claimant’s final dues in form of advance salary, this is an unauthorized deduction which Respondent has no authority to make and I do reiterate that aspect.
14. I therefore allow partly the application for review of my judgement and include the following:-
a. Kshs.44,811. 03 as outstanding leave allowance of 17 days.
b. Clarify that the total claim awarded is now Kshs.1,373,942. 03 less statutory deductions.
c. The Respondents to pay costs of this suit.
Read in open Court this 18th day of September, 2017.
HON. LADY JUSTICE HELLEN WASILWA
JUDGE
In the presence of:
No appearance for Claimant
No appearance for Respondent