https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1930

Nebet v Corrugated Sheets Ltd (Employment and Labour Relations Appeal E017 of 2025) [2026] KEELRC 1930 (KLR) (6 July 2026) (Judgment) Neutral citation: [2026] KEELRC 1930 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Malindi Employment and Labour Relations Appeal E017 of 2025 K Ocharo, J July 6, 2026 Between Naftal dennis Mganga Nebet Appellant and Corrugated Sheets Ltd Respondent Judgment A. Introduction 1.This is a first appeal against the judgment of the Principal Magistrate's Court at Mariakani (Hon. M.S. Kimani, PM) delivered on 30th July, 2025, in MCELRC No. E003B of 2024, in which the claim of the Appellant, Naftal Dennis Mganga Nebet, for unpaid house allowance and under-calculated gratuity was found to be without merit and was dismissed with costs to the Respondent, Corrugated Sheets Limited. 2.Aggrieved, the Appellant filed the Memorandum of Appeal dated 30th August, 2025, setting out five grounds of appeal, all of which converge upon two questions: first, whether the consolidated salary paid to the Appellant throughout his nineteen years and six months of service included an element of house allowance; and second, whether the Appellant established an entitlement to gratuity calculated at the rate of twenty-six days' pay for every completed year of service, rather than the fifteen days' rate at which he was in fact paid. 3.Having carefully re-evaluated the record, including the pleadings, the evidence adduced viva voce and under cross-examination, the judgment of the trial court, and the rival submissions filed on appeal, I am satisfied, for the reasons set out below, that the appeal is devoid of merit and must be dismissed. B. Background and the Pleadings Before the Trial Court 4.The Appellant was, by an Offer of Employment dated 1st October, 2003, engaged by the Respondent as a Mechanical Supervisor on terms which, in the clause headed “Salary,” described his remuneration as “a consolidated salary of Kshs. 15,000/= per month,” payable in arrears at the end of each month, with all statutory deductions to be borne by the Appellant. He served in that capacity until his retirement on 31st March, 2023, by which date his consolidated salary, following successive increments over the intervening years, stood at Kshs. 75,033/= per month. 5.By a Statement of Claim dated 18th July, 2023, filed initially as ELRC Cause No. E070 of 2023 at Mombasa — and later, following a successful preliminary objection to jurisdiction founded on Gazette Notice No. 6024 of 19th June, 2018 (the Appellant's gross monthly pay being below Kshs. 80,000/=), transferred to and renumbered MCELRC No. E003B of 2024 before the Chief Magistrate's Court at Mariakani — the Appellant claimed a total sum of Kshs. 1,343,547/=, particularised as follows:i.Unpaid house allowance of Kshs. 11,500/= per month for 63 months (calculated at 15.33% of his final salary of Kshs. 75,033/=), totalling Kshs. 724,500/=; andii.Under-calculated gratuity, computed by reference to a daily wage of Kshs. 2,886/=, 11 days, and 19.6 years of service, totalling Kshs. 493,848/=. 6.The Appellant's case, as pleaded and as set out in his witness statement dated 31st July, 2023, was that following unspecified “in-house deliberations” between himself, certain of his colleagues, and the Respondent, it was agreed that the Respondent would pay house allowance at the rate of 15% of gross pay with effect from January 2018, but that the Respondent reneged on this arrangement. He relied for this contention chiefly upon a letter dated 14th April, 2018, headed “House Allowance Reminder Letter,” addressed to the Respondent's Director of Finance and Administration and signed by the Appellant together with nine other departmental supervisors, which referred to an earlier meeting in June 2017 at which the Respondent had allegedly promised to look into the matter. On the question of gratuity, the Appellant pleaded that upon retirement the Respondent miscalculated his gratuity entitlement at fifteen days' pay for each completed year of service instead of twenty-six days, whereas, he averred, employees under his supervision were paid the higher rate — a state of affairs he characterised as discriminatory, illegal and unlawful. 7.The Respondent's Statement of Defence dated 22nd August, 2023, denied that there had been any meeting or agreement varying the terms of the Appellant's employment, and maintained that the Appellant's salary had, from the very inception of the contract, been consolidated to include house allowance. On gratuity, the Respondent's position, as amplified in the witness statement of Evans Muigai, its Human Resource and Administration Officer, dated 22nd August, 2023, was that the rate of twenty-six days per completed year applied exclusively to unionised staff under the applicable Collective Bargaining Agreement, that the Appellant was a non-unionised supervisor to whom that rate did not apply, and that he had in any event already been paid a gross gratuity of Kshs. 822,477/= — a sum the Respondent maintained it was not contractually bound to pay at all — in full and finalsettlement, which the Appellant acknowledged in writing on 20th April, 2023, confirming that he had no further claims against the Respondent or its directors. C. The Evidence at the Trial 8.At the hearing on 5th November, 2024, the Appellant testified in support of his own case, adopting his witness statement of 31st July, 2023, as his evidence-in-chief. He maintained that he was never given a house, that no house allowance was paid, and that the payslips tendered in evidence showed his basic pay with a nil figure against housing. Under cross- examination by counsel for the Respondent, however, he conceded that his letter of appointment spoke expressly of a “consolidated salary”; that the Respondent had, in response to the letter of 14th April, 2018, replied only verbally and never in writing; that none of the nine other signatories to that letter, nor the Director of Finance and Administration to whom it was addressed, was called to corroborate his account; that he had no evidence that any other employee was in fact paid gratuity at the rate of twenty-six days per year; that he had raised no complaint with the labour office; and that he had signed both his letter of appointment and the final dues confirmation of 20th April, 2023, without duress or coercion. 9.The Respondent's sole witness, Evans Francis Muigai, its Human Resource and Administration Officer, adopted his witness statement of 22nd August, 2023, as his evidence-in-chief when the defence case was heard on 19th March, 2025. He testified that the Appellant was, from the date of his engagement, paid a consolidated salary inclusive of housing allowance; that there was never any meeting at which the terms of the Appellant's employment were varied; that the letter of 14th April, 2018, was never received by the Respondent, not being stamped as received; and that gratuity was paid in accordance with a tiered company policy under which unionised employees received nineteen, twenty-three or twenty-six days per year of service depending on length of service, while non-unionised employees such as the Appellant received a flat fifteen days regardless of the duration of service. Under cross-examination by counsel for the Appellant, he conceded, fairly, that the company policy he described had not been produced or tendered in evidence, that the Director of Finance and Administration and the other signatories to the 2018 letter had likewise not been called by the Respondent, and that the payslips in evidence recorded only a basic pay component, with no separate entry for house allowance. D. The Judgment of the Trial Court 10.In its judgment of 30th July, 2025, the trial court identified three issues for determination: the proper construction of the phrase “consolidated salary” in the Offer of Employment and whether it was inclusive of house allowance; whether, if it was not, the Appellant's method of computing the allowance claimed was sound; and whether the Appellant was entitled to gratuity at the rate of twenty-six days per completed year of service. 11.Applying the Court of Appeal's decision in Grain Pro Kenya Inc. Ltd v Andrew Waithaka Kiragu [2019] eKLR and the reasoning of Manani J. in Vipingo Ridge Limited v Swalehe Ngonge Mpitta [2022] KEELRC 309 (KLR), the learned trial magistrate held that the use of the word “consolidated” in a contract of employment raises a presumption of fact that the salary so described includes all allowances ordinarily payable to an employee, including house allowance, but that this presumption is one of fact and may be rebutted by cogent evidence. He found that the evidence the Appellant advanced to rebut the presumption — the uncorroborated and disputed letter of 14th April, 2018 — was “inherently weak,” in that none of its co-signatories nor the addressee were called to confirm it, and concluded that the presumption raised by the express use of the word “consolidated” in the Offer of Employment had not been dislodged. 12.The trial court further found, in the alternative, that even had entitlement been established, the Appellant's method of calculation — applying the rate applicable to his final salary of Kshs. 75,033/= uniformly across the entire 63-month period claimed, notwithstanding that his salary had progressively increased from its starting point of Kshs. 15,000/= — was not sound in fact or in law, no evidence having been led of the incremental salary at each material point in time, such that no award could in any event be founded on the figure of Kshs. 724,500/= claimed. 13.On gratuity, the trial court held that gratuity is not a mandatory or statutory entitlement in Kenya, that the Offer of Employment made no provision for it, and that no agreement to the contrary had been proved. It distinguished gratuity from statutory service pay under sections 35(5) and 35(6) of the Employment Act, 2007, and found that, being a member of the National Social Security Fund, the Appellant was in any event excluded from service pay by section 35(6). It further observed that the Respondent had, notwithstanding the absence of any contractual obligation to do so, paid the Appellant a gross gratuity of Kshs. 822,477/=— a sum the court characterised as generous — and held that the claim for a further, under- calculated sum was misconceived. The suit was accordingly dismissed in its entirety, with costs to the Respondent. E. The Appeal 14.By the Memorandum of Appeal dated 30th August, 2025, the Appellant advanced five grounds, contending, in summary, that the learned trial magistrate erred in law and in fact: in dismissing the claim for house allowance of Kshs. 724,500/= contrary to section 31(2)(a) of the Employment Act and to Grain Pro Kenya Inc. Ltd v Andrew Waithaka Kiragu (ground 1); in shifting to the Appellant the burden of proving that the consolidated salary excluded house allowance (ground 2); in disregarding the payslips tendered by the Appellant in calculating house allowance (ground 3); in disregarding the evidence relating to gratuity and thereby dismissing the claim for Kshs. 493,483/= in under-calculated gratuity — a figure which, on comparison with the pleadings and the Appellant's own witness statement, appears to transpose two digits of the sum of Kshs. 493,848/= actually claimed at the trial, though nothing turns on the discrepancy — (ground 4); and in disregarding the evidence relating to retirement benefits generally (ground 5). The Appellant prayed that the appeal be allowed, the judgment of the lower court set aside, and judgment entered in his favour for the sums claimed together with the costs of the suit and of the appeal. F. Submissions on Appeal The Appellant's Submissions 15.In his written submissions, the Appellant framed the central issue as being the propriety of the trial court's finding on house allowance. He submitted that where a contract of employment is silent on whether a consolidated salary expressly includes house allowance, the allowance remains payable and is not excluded by section 31(2)(a) of the Employment Act; that this was the position established by the Court of Appeal in Grain Pro Kenya Inc. Ltd v Andrew Waithaka Kiragu; and that the payslips in evidence, showing basic salary of Kshs. 75,033/= and a nil entry for house allowance, coupled with the letter of 14th April, 2018, demonstrated that the parties understood the consolidated salary never to have included house allowance — for, so the argument ran, had the position been otherwise, the Appellant and his colleagues would have agitated for a salary increment rather than merely for house allowance. On gratuity, the Appellant submitted that the Respondent's own witness had admitted that non-unionised staff, including supervisory personnel such as the Appellant, were paid gratuity at a lower rate than unionised staff, and that this amounted to unlawful discrimination which, under section 5(6) of the Employment Act, it fell to the Respondent to disprove — a burden it had, in the Appellant's submission, failed to discharge. He accordingly urged the Court to allow the appeal, set aside the judgment of the lower court, and enter judgment in his favour as prayed. The Respondent's Submissions 16.The Respondent, in its written submissions dated 13th May, 2025, filed together with its list of authorities, opposed the appeal on every ground. On house allowance, it submitted that section 31(2) of the Employment Act expressly excludes the general obligation to provide housing or a housing allowance where the contract of service consolidates that element into the basic wage; that the Appellant's Offer of Employment did precisely that from its inception, describing his remuneration in terms as a “consolidated salary,” in contrast to the contract considered in Grain Pro Kenya Inc. Ltd v Andrew Waithaka Kiragu, where the letter of appointment was silent on consolidation altogether and referred only to “other benefits as required by law”; and that once the Respondent had established the consolidated character of the wage, the evidential burden shifted to the Appellant, under sections 107 and 109 of the Evidence Act, to prove that house allowance was in fact excluded from that consolidated figure — a burden reinforced, in the Respondent's submission, by the Appellant's prolonged and unprotested acceptance of the arrangement over some nineteen years, consistently with the reasoning in Kinyanjui v Burhani Engineers Limited [2025] KEELRC 3231 (KLR), Al-Barakat Agency Limited v Bwetta [2025] KEELRC 3460 (KLR) and Mwangi v Luma Stores and Supplies Enterprises Ltd [2025] KEELRC 2548 (KLR). On gratuity, the Respondent submitted that gratuity is not a statutory entitlement under the Employment Act, 2007, citing Coastal Bottlers Ltd v George Karanja [2014] KEELRC 617 (KLR) and Central Bank of Kenya v Davies Kivieko Muteti [2009] eKLR; that the Appellant's contract made no provision for it; that the sum of Kshs. 822,477/= paid to him was accordingly an ex gratia and discretionary payment incapable of founding a claim for more, following Gaye Madiodio v Société Internationale de Télécommunications Aéronautiques (SITA) [2021] KEELRC 534 (KLR) and Mutisya v Kalu Works Limited [2025] KEELRC 1730 (KLR); and that, being a member of the National Social Security Fund, the Appellant was in any event excluded from service pay by section 35(6) of the Employment Act, as explained in Alsaidco Alarm Limited v Njeru [2023] KECA 1127 (KLR). It further submitted that the appeal did not meet the threshold for appellate interference with the trial court's findings of fact, citing Evans Juma Otwala v Jackline Kazungu Kambi [2020] KEHC 661 (KLR), and that costs, both of the suit and of the appeal, should follow the event and be borne by the Appellant. G. Analysis and Determination The Duty of this Court as a First Appellate Court 17.It is well settled, and neither party contested the proposition, that this being a first appeal, this Court is enjoined to re-evaluate, re-assess and re-analyse the evidence on record and to reach its own conclusions, bearing in mind that, unlike the trial court, it did not have the advantage of seeing and hearing the witnesses testify. The Court will accordingly be slow to disturb a finding of fact reached by a trial court which had that advantage, unless it is demonstrated that the trial court failed to take account of particular circumstances or probabilities material to an estimate of the evidence, or that its finding is inconsistent with the evidence on record as a whole (see Mwangi v Wambugu [1984] KLR 453; Evans Juma Otwala v Jackline Kazungu Kambi [2020] KEHC 661 (KLR)). Having so reminded myself, I turn to the substance of the appeal. Whether the Consolidated Salary Included House Allowance (Grounds 1, 2 and 3) 18.The starting point of this inquiry must be the Offer of Employment dated 1st October, 2003, which is the primary document of contract between the parties (Grain Pro Kenya Inc. Ltd v Andrew Waithaka Kiragu, paragraph 13). Clause 3 of that letter, headed “Salary,” is unambiguous: the Appellant was to be paid “a consolidated salary” per month, in arrears, with all statutory deductions to his account. It is not, in my view, seriously in dispute — indeed the Appellant conceded as much in cross-examination — that the contract of employment expressly, and from its very inception, described the Appellant's remuneration as a consolidated salary. This is a critical distinguishing feature from the contract considered by the Court of Appeal in Grain Pro Kenya Inc. Ltd v Andrew Waithaka Kiragu, upon which the Appellant places such heavy reliance. There, the letter of appointment nowhere used the word “consolidated” of the salary at all; it simply stated an initial salary figure and separately promised “other benefits as required by law,” a form of words the Court of Appeal found gave rise to no clear presumption either way, such that the claimant in that case succeeded in his claim for house allowance. The wording of the contract in the present matter admits of no such ambiguity, and gives rise to no reasonable construction other than that the parties intended, from the outset, that the single consolidated figure would stand in place of, and would subsume, the several individual components — including house allowance — that an employer might otherwise be required to itemise separately under section 31 of the Employment Act. 19.This construction accords with the developing jurisprudence of this Court, to which the trial magistrate correctly had regard. In Vipingo Ridge Limited v Swalehe Ngonge Mpitta [2022] KEELRC 309 (KLR), Manani J. held that the use of the word “consolidated” in a contract of employment raises a presumption of fact that the salary so described includes all allowances that would ordinarily be due to the employee, including house allowance, but that the presumption is rebuttable by evidence — for instance, a payslip demonstrating that house allowance was not in fact among the components comprising the consolidated figure. That approach has since been consistently applied and reinforced: in Charity Wambui Muriuki v M/s Total Security Surveillance Limited [2017] KEELRC 898 (KLR), it was held to be incumbent upon a claimant to demonstrate, by production of a payslip or otherwise, that house allowance was not one of the allowances paid within the consolidated salary; in Evans Gato Orina v Aggreko International Project Limited [2019] KEELRC 1000 (KLR), it was held that the burden of proving any interpretation of a consolidated salary other than that it constitutes the employee's whole and constant gross remuneration rests squarely on the employee; and this reasoning has since been followed in Kinyanjui v Burhani Engineers Limited [2025] KEELRC 3231 (KLR) and Mwangi v Luma Stores and Supplies Enterprises Ltd [2025] KEELRC 2548 (KLR). 20.Once, therefore, the Respondent had established — as it plainly did, by production of the Offer of Employment itself — that the Appellant's remuneration was expressly consolidated, the evidential burden shifted to the Appellant to demonstrate, contrary to the plain wording of his own contract, that the consolidated figure excluded house allowance. This is not, contrary to the second ground of appeal, an improper shifting of the legal burden of proof; it is no more than the ordinary operation of sections 107 and 109 of the Evidence Act, under which he who alleges a fact — here, that house allowance was excluded from an expressly consolidated wage — must prove it, once the other party has laid a foundation calling for an answer. The trial magistrate was, with respect, correct so to hold, and ground 2 of the appeal accordingly fails. 21.Did the Appellant discharge that burden? I am satisfied, as was the trial court, that he did not. His case rested, in substance, on a single document — the letter dated 14th April, 2018, addressed to the Respondent's Director of Finance and Administration and signed by the Appellant and nine other departmental supervisors — said to record a promise, made verbally in June 2017, to introduce house allowance at 15% of gross pay with effect from January 2018. That letter suffers from several infirmities which, taken together, render it incapable of dislodging the presumption raised by the express contractual language. First, the Respondent denied ever having received it, and there is no endorsement of receipt upon it; the Appellant himself confirmed under cross-examination that any response was verbal only. Second, and more tellingly, not one of the nine co-signatories, nor the addressee to whom the letter was directed, was called to give evidence confirming its authorship, its delivery, or the alleged verbal undertaking said to have followed it — a curious omission for a document said to record so material a variation of a written contract of long standing, and one that leaves the Appellant's account uncorroborated in circumstances that plainly called for corroboration. Third, the very premise of the letter — a request that the Respondent “look into the matter,” made against the backdrop of the “high cost of living” — reads far more naturally as an appeal for a benefit not yet enjoyed than as the record of a concluded agreement varying the terms of employment; it is, at its highest, evidence of a grievance raised, not of a promise accepted and thereafter dishonoured. 22.Nor, in my view, do the payslips assist the Appellant, notwithstanding the emphasis ground 3 of the appeal places upon them. It is correct, as the Respondent's own witness fairly conceded, that the payslips in evidence show only a basic pay figure with a nil entry against “Housing.” But, as the Court of Appeal made clear in Grain Pro Kenya Inc. Ltd v Andrew Waithaka Kiragu, a payslip is not a contracting document; it is unilaterally prepared by the employer, and the employee has no part in its preparation. Where, as here, the letter of appointment itself expressly and unambiguously consolidates the wage, a payslip's mere layout — showing “Housing” as a distinct, unfilled line — cannot be permitted to override or recharacterise the parties' written bargain; if anything, it is simply consistent with a payroll system that itemises components for administrative convenience while the underlying entitlement remains, as contracted, a single consolidated sum. The trial magistrate did not, therefore, err in declining to found an award of house allowance on the payslips; ground 3 of the appeal accordingly fails. 23.For completeness, I would add that even had the Appellant discharged the burden of proving an entitlement to house allowance calculated separately from his consolidated pay, the method by which he computed the sum claimed was, as the trial court correctly found, unsound. He applied the rate applicable to his terminal salary of Kshs. 75,033/= uniformly across the entirety of the 63-month period claimed, notwithstanding that it is common ground that his salary rose progressively from Kshs. 15,000/= at the commencement of his employment in 2003, through annual increments, to that terminal figure. No evidence was led — by either party, though the burden lay with the Appellant — of the salary payable at each material point within the claimed period, such that the sum of Kshs. 724,500/= could be said to rest on any sound evidential foundation. This furnishes an independent and sufficient basis for rejecting the claim, quite apart from the question of entitlement itself. Ground 1 of the appeal accordingly fails. Whether the Appellant Proved Entitlement to Gratuity at the Rate of Twenty-Six Days (Ground 4) 24.It is well established, and was correctly recognised by the trial court, that gratuity is not a creature of statute in Kenya. The Employment Act, 2007, imposes no general obligation upon an employer to pay gratuity; it is, by its nature, a gratuitous payment made at the discretion of the employer, ordinarily upon the termination, resignation or retirement of an employee, and is enforceable by an employee only where it is provided for in the contract of employment, in a collective bargaining agreement, or in some other applicable instrument or statute (Bamburi Cement Limited v William Kilonzi [2016] KECA 546 (KLR); Pathfinder International Kenya Limited v Stephen Ndegwa Mwangi [2019] KECA 759 (KLR); Coastal Bottlers Ltd v George Karanja [2014] KEELRC 617 (KLR); Central Bank of Kenya v Davies Kivieko Muteti [2009] eKLR). It follows that a claimant who asserts an entitlement to gratuity, still less to gratuity at a particular, enhanced rate, bears the burden of establishing the contractual, collective or statutory foundation for that entitlement. 25.The Appellant's Offer of Employment of 1st October, 2003, is entirely silent on gratuity. No collective bargaining agreement was pleaded, produced, or shown to apply to him; indeed, he conceded in cross-examination that he was not, at any material time, a member of a trade union, and that no Collective Bargaining Agreement governed his terms of service. On his own case, therefore, gratuity was, for him, a contractual benefit that was never contracted for at all. That the Respondent nevertheless computed and paid him a gross gratuity of Kshs. 822,477/= upon his retirement — a sum considerably in excess of anything shown to be legally owed to him — does not, without more, crystallise into a legal entitlement to a still larger sum calculated on a different, and inapplicable, basis. A voluntary or ex gratia payment made in the absence of any contractual obligation does not oblige the payer to make it according to some other, more generous formula merely because such a formula is applied to a different category of employee for different, extraneous reasons (Gaye Madiodio v Société Internationale de Télécommunications Aéronautiques (SITA) [2021] KEELRC 534 (KLR); Mutisya v Kalu Works Limited [2025] KEELRC 1730 (KLR)). 26.As to the allegation that the rate of fifteen days applied to the Appellant was discriminatory when measured against the twenty-six days said to be paid to unionised staff, I am unable to accept it. It is not unlawful discrimination for an employer to accord better terms, including enhanced gratuity or severance terms, to unionised employees pursuant to a collective bargaining agreement negotiated on their behalf by a trade union; an employee who is not a member of that union, and who has not offered to pay the requisite agency fees under section 49 of the Labour Relations Act, 2007, cannot claim the benefit of terms negotiated exclusively for unionised staff (Mathew Munyao and 133 others v General Plastics Limited [2018] KEELRC 373 (KLR)). More fundamentally, the Appellant, upon whom the burden lay to substantiate his allegation of discriminatory treatment, called no evidence whatsoever to prove it: he did not identify a single comparator by name, did not adduce that comparator's payslip, gratuity computation, or terms of service, and conceded in cross- examination that he had no evidence to support the assertion that other employees were paid at the higher rate. An unsubstantiated allegation of discrimination, however sincerely held, cannot found a monetary award; and while section 5(6) of the Employment Act does indeed place upon an employer the burden of proving that discriminatory conduct did not occur once a claimant has laid a proper evidential foundation for such an allegation, no such foundation was laid here. There was, in short, nothing for the Respondent to rebut. 27.I would add that the Respondent's evidence, given through Mr. Muigai, was itself instructive: he explained, without serious challenge, that the enhanced rate applied only to unionised employees under the terms of a collective bargaining agreement calibrated by length of service, while non-unionised staff — a category that includes supervisory and managerial personnel such as the Appellant — were paid a flat rate under company policy, irrespective of the length of their service. That the underlying company policy document was not itself produced in evidence does not assist the Appellant; the burden of proving his own entitlement to a different and higher rate remained his throughout, and it was not discharged merely by pointing to a gap in the Respondent's own documentary proof of a policy the Appellant did not seriously contest existed. I am satisfied that the Appellant placed no evidence before the trial court capable of controverting the Respondent's case that he was not entitled to gratuity at the rate of twenty-six days he pursued; gratuity being, as I have found, a contractual benefit which was, on the Appellant's own evidence, never contracted for in the first place. Ground 4 of the appeal accordingly fails. The Claim Relating to Retirement Benefits Generally (Ground 5) 28.The fifth ground of appeal, relating generally to “retirement benefits,” was not the subject of any distinct or separate submission, and adds nothing to the claims for house allowance and gratuity already considered. To the extent it is intended to encompass some further or residual retirement entitlement, none was pleaded with particularity, none was proved, and none arises by statute: it is common ground that the Appellant was a member of the National Social Security Fund, deductions in respect of which appear on the face of the payslips in evidence, and section 35(6) of the Employment Act accordingly excludes him from any claim to statutory service pay (Alsaidco Alarm Limited v Njeru [2023] KECA 1127 (KLR)). There being no other retirement benefit shown to be due, ground 5 of the appeal likewise fails. Conclusion on the Merits 29.It follows from the foregoing that the learned trial magistrate correctly directed himself both on the law and on the evidence. He properly applied the presumption arising from the express consolidation of the Appellant's salary, correctly placed upon the Appellant the burden of rebutting that presumption, and correctly found that burden not to have been discharged on the evidence before him. He was similarly right to find that gratuity, being a matter of contract and not of statute, was never owed to the Appellant at any particular rate, and that no evidence of unlawful discrimination had been placed before the court. There is, in my assessment, no proper basis shown for this Court, sitting as a first appellate court, to interfere with those findings; they are neither founded on no evidence nor demonstrably inconsistent with the evidence as a whole, and the appeal must fail in its entirety. H. Costs 30.Costs ordinarily follow the event, and I see no reason, in the circumstances of this appeal, to depart from that ordinary rule. I. Disposition 31.For the reasons set out above, I make the following orders:a.The appeal be and is hereby dismissed in its entirety.b.The judgment of the Principal Magistrate's Court at Mariakani delivered on 30th July, 2025, in MCELRC No. E003B of 2024, be and is hereby upheld.c.The costs of this appeal shall be borne by the Appellant. It is so ordered. DATED, SIGNED AND DELIVERED AT MALINDI THIS 6th DAY OF JULY, 2026.HON. MR. JUSTICE OCHARO KEBIRA Malindi ELRCEmployment and Labour Relations Court Date: 2026-07-07 08:45:30