[2023] KEELRC 2700 (KLR)

Kiboko v Osteria Group (Kenya) Limited (Cause E023 of 2022) [2023] KEELRC 2700 (KLR) (27 October 2023) (Judgment)

Neutral citation: [2023] KEELRC 2700 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Cause E023 of 2022

SC Rutto, J

October 27, 2023

Between

Benson Charo Kiboko

Claimant

and

Osteria Group (Kenya) Limited

Respondent

Judgment

1. The Claimant instituted the instant suit vide a Statement of Claim dated 14th January 2022, in which he avers that he was employed by the Respondent on 10th October 2018, as Head Cook. The Claimant avers that he was to be paid a monthly basic salary of Kshs 100,000/= which was paid in cash and cheque. It is the Claimant’s case that throughout his employment, the Respondent paid him haphazardly. He further avers that from June 2019 or thereabout, he never received a salary and by the time he left employment, the Respondent owed him the sum of Kshs 1,494,000/=. The Claimant’s claim against the Respondent is for the sum of Kshs 6,758,000/= being unpaid salary, leave pay, service pay, and compensation for unfair labour practices, cruel, demeaning and degrading treatment.

2. Upon being served with the Statement of Claim, the Respondent entered appearance and filed a Statement of Response through which it avers that the Claimant was earning the sum of Kshs 40,000/= per month and not Kshs 100,000/= as alleged. The Respondent further avers that the only amount due to the Claimant is Kshs 291,667/=, being his final dues.

3. The Respondent further states that the Claimant was treated with utmost respect and dignity at all times. According to the Respondent, the Claimant deserted his duties on or about August 2020 without any explanation hence he was issued with a show cause letter dated 13th August 2020, which he did not respond to.

4. The Respondent further contends that the suit does not disclose any cause of action, is frivolous, bad in law and an abuse of the court process. Consequently, the Respondent has asked the Court to dismiss the Claimant’s suit with costs.

5. On 27th April 2023, when the matter proceeded for hearing, the Claimant testified in support of his case, while the Respondent elected not to call oral evidence. This was despite filing a witness statement sworn by Samuel Okelo Ondiko.

Claimant’s case 6. The Claimant started by adopting his witness statement to constitute his evidence in chief. He proceeded to produce the documents filed alongside the Statement of Claim, as his exhibits before Court.

7. It was the Claimant’s evidence that his salary was paid haphazardly and at the time, he left employment in November 2020, the Respondent had not paid him salary in the sum of Kshs.1,494,000/=.

8. He further denied the Respondent’s assertions that he was earning Kshs 40,000/= as monthly salary.

9. The Claimant further averred that the Respondent engaged in unlawful acts in issuing him bad cheques, a matter that he reported to Kilimani Police Station.

10. The Claimant further states that during the period of his employment, the Respondent failed to remit statutory deductions particularly the National Social Security Fund (NSSF) which he claims. That further, despite asking for leave, the Respondent did not grant him leave.

11. It was the Claimant’s further evidence that for the period he worked for the Respondent, he had to endure a lot of abuse hurled at him in a racist and vulgar manner. That the Respondent's Director Mr. Maurizio Corti used profanities against him. Following such acts of the Respondent's director, he lived a life of indignity, intimidation, low self esteem and demeaned life which he believes was unlawful.

12. That he left employment on 27th November 2020, because he could not sustain himself, the Respondent having failed and refused to pay his salary.

13. As stated herein, the Respondent elected not to call oral evidence hence the trial closed following the Claimant’s testimony. Thereafter, directions issued on filing of submissions.

Submissions 14. It was the Claimant’s submission that his statements were uncontroverted as the Respondent did not call its witnesses and did not produce the documents they wished to rely upon. In support of this position, the case of Equity Bank Limited vs Bobbin (EPZ) Limited (2021) was cited.

15. With regards to the reliefs sought, it was similarly submitted that the Respondent did not disprove the Claimant’s averments through a written record and did not call witnesses to do so.

16. The Respondent on its part, submitted that the contract of employment exhibited by the Claimant, is a forgery. It was the Respondent’s further submission that the Claimant has not brought before this Court evidence to prove he was paid Kshs 100,000/= as his monthly salary.

17. The Respondent further submitted that the Claimant was not unlawfully terminated as he deserted duty and failed to resume employment despite efforts to trace him.

18. Referencing the case of Jennifer Nyambura Kamau Humphrey vs Mbaka Nnadi (2013) eKLR the Respondent further submitted that the Claimant has failed to prove that he was treated in a manner that was was cruel, inhumane and degrading.

Analysis and determination 19. Flowing from the pleadings by both parties, the evidentiary material before me and the rival submissions, it is apparent that the singular issue falling for the Court’s determination is whether the Claimant is entitled to the reliefs sought.

Reliefs? Unpaid Salary 20. In order to resolve this issue, it is imperative to ascertain at the outset, what salary the Claimant was earning at the material time. This is on account of the fact that both parties have presented varying figures. Whereas the Claimant has averred that he was earning a monthly salary in the sum of Kshs 100,000/=, the Respondent holds otherwise and maintains that the Claimant’s monthly salary was Kshs 40,000/=.

21. In support of his claim, the Claimant exhibited a copy of a letter of appointment dated 8th October 2018, which indicates his monthly salary as Kshs 100,000/=.

22. On its part, the Respondent annexed to its Statement of Response, a copy of a letter of appointment dated 8th October 2018, which states that the Claimant was to earn a monthly gross salary of Kshs 40,000/=. Be that as it may, the said letter of appointment was not admitted in evidence. Therefore, its evidentiary value was not tested in cross examination.

23. The Court of Appeal in the case of Kenneth Nyaga Mwige vs. Austin Kiguta & 2 others [2015] eKLR held that a document “marked for identification”, is of very little, if any, evidential value until it is formally produced.

24. In this case, the letter of appointment annexed to the Statement of Response was neither marked for identification nor formally produced as an exhibit before Court. As such, it was of no evidential value to the Respondent and did not aid in proving that the Claimant’s salary was Kshs 40,000/= as opposed to Kshs 100,000/=.

25. Further to the foregoing, the Claimant exhibited a demand letter dated 27th October 2020, issued on his behalf by Kituo Cha Sheria, to the Respondent. As per the demand letter, the Claimant sought to be paid salary arrears. From the record, it is apparent that the Respondent reverted to the demand letter through its Advocates and admitted owing the Claimant salary arrears.

26. Notably, the Respondent through his Advocates did not dispute the assertions in the demand letter to the effect that the Claimant was earning the sum of Kshs 100,000/= per month as salary.

27. Therefore, if it is indeed true that the Claimant was earning Kshs 40,000/=, it follows that the Respondent would have set the record straight through its response to the demand letter by giving the accurate position.

28. In addition, the Claimant exhibited copies of cheques in the sum of Kshs 50,000/= issued by the Respondent. In this regard, one wonders why the Respondent would pay the Claimant Kshs 50,000/=, which is evidently higher than Kshs 40,000/= it alleges he was earning.

29. In light of the foregoing, I am led to conclude that the evidence on record tilts in favour of the Claimant that he was indeed earning the sum of Kshs 100,000/= as his gross monthly salary as opposed to Kshs 40,000/=.

30. That said, I now move to determine whether the Claimant’s salary was unpaid as claimed. It is the Claimant’s case that at the time he left employment, the Respondent owed him the sum of Kshs 1,494,000. 00 being unpaid salary.

31. Despite disputing owing the Claimant the said amount, the Respondent did not lead evidence to prove that indeed, his salary was settled in full. If anything, the Respondent admitted through its response to the Claimant’s demand letter that he was owed unpaid salary. However, it did not proceed to qualify the amount outstanding.

32. Indeed, it may very well be said that the Claimant’s claim was not controverted by the Respondent through evidence adduced in whatever form or manner. To this extent, the Claimant’s claim succeeds.

Service pay 33. The Claimant has prayed for the sum of Kshs 110,000. 00 being service pay. Section 35(6) of the Employment Act only provides for service pay where employees are not members of any pension scheme, provident fund or the National Social Security Fund (NSSF). In this case, the Claimant exhibited a copy of his NSSF Statement thus confirming that he is a registered member of the said Fund. Consequently, he falls within the ambit of exclusions stipulated under Section 35 (6) (d) of the Employment Act hence the claim under this head falls.

Leave Pay 34. The Claimant has sought to be paid the sum of Kshs 154,000/= being outstanding leave for 2 years, 2 months. The Respondent admitted that the Claimant’s outstanding leave days for 2019 and 2020 were 43. Pursuant to Section 28(4) of the Employment Act, the Claimant is only entitled to recover leave days covering 18 months preceding his exit from the Respondent’s employment. Therefore, the Claimant is entitled to compensation for only 43 leave days as admitted by the Respondent.

Compensation for unfair labour practices, cruel, demeaning and degrading treatment 35. The Claimant has prayed for the sum of Kshs 5,000,000/= being compensation for unfair labour practices, cruel, demeaning and degrading treatment. The Claimant stated that he had to endure a lot of abuse from the Respondent’s Director, Mr. Maurizio Corti who used profanities against him. He contends that as a result, he lived a life of indignity, intimidation, low esteem and demeaned life. The Respondent disputed the Claimant’s assertions and averred that he was treated with dignity and at no point was he subjected to cruel, inhumane and degrading treatment.

36. Notwithstanding the Claimant’s assertions, he failed to adduce evidence in whatever form or manner to back up his claims. Therefore, his claims to that extent remained unsubstantiated.

37. It was however not in dispute that the Claimant was not paid his full salary as and when the same fell due. The Respondent admitted as much in its response to the demand letter by the Claimant’s legal representative.

38. The duty of the employer to compensate an employee for services rendered is a cardinal rule in any employment relationship. This position is aptly captured under Section 17(1) of the Employment Act and reads as follows;Subject to this Act, an employer shall pay the entire amount of the wages earned by or payable to an employee in respect of work done by the employee in pursuance of a contract of service…

39. Indeed, to confirm the significance of this provision, Section 17 (10) of the Act provides for a penalty in the event an employer fails to make payment of or to tender wages earned or payable to an employee in accordance with section 17 (1).

40. Flowing from the foregoing, it is apparent that the Respondent not only breached the employment contract when it withheld the Claimant’s salary but also breached a mandatory statutory provision.

41. What’s more, the Respondent’s act of withholding the Claimant’s salary constituted an unfair labour practice and was in essence, a violation of Article 41(1) of the Constitution. This is further taking into account the fact that the actions and omissions of the Respondent exposed the Claimant to pecuniary embarrassment and other attendant consequences. Accordingly, he is entitled to compensation.

Orders 42. It is against this background that I enter Judgment in favour of the Claimant against the Respondent as follows:a.A declaration that the Respondent violated the Claimant’s right to fair labour practices as guaranteed under Article 41(1) of the Constitution.b.The Claimant is awarded the sum of Kshs 100,000. 00 being compensation for breach of his right to fair labour practices.c.The Claimant is awarded the sum of Kshs 1,494,000. 00 being unpaid salary.d.The Claimant is awarded the sum of Kshs 143,333. 30 being unpaid leave.e.The total award is Kshs 1,737,333. 30. f.Interest on the amount in (e) at Court rates from the date of Judgment until payment in full.

43. The Claimant shall also be entitled to a Certificate of Service in line with Section 51(1) of the Employment Act. This shall be issued within 30 days from the date of this Judgment.

44. The Respondent shall also bear the costs of this claim.

DATED, SIGNED and DELIVERED at NAIROBI this 27th day of October, 2023. ………………………………STELLA RUTTOJUDGEAppearance:For the Claimant Mr. MwaririFor the Respondent Mr. Kibet instructed by Ms. MidevaCourt Assistant Abdimalik HusseinORDERIn 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 had 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.STELLA RUTTOJUDGE