[2001] KEHC 574 (KLR)
The court found that the plaintiff had established, through documentary evidence and unchallenged testimony, that he was entitled to the provident fund benefits deducted during his employment with the defendant. The defendant's own correspondence acknowledged the plaintiff's entitlement and willingness to settle....
Source-derived case information.
- Citation
- [2001] KEHC 574 (KLR)
- Parties
- Plaintiff: Nazir Mwithwani; Defendant: Avow Marketting Services (K) Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 2303 of 1995
- Procedural Posture
- Civil Case / Judgment
- Outcome
- judgment for the plaintiff
- Legal Topics
- Provident Fund Claims, Employment Termination, Final Dues, Pension Benefits
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nazir Mwithwani
Plaintiff
Avow Marketting Services (K) Ltd
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the plaintiff is entitled to payment of provident fund upon resignation from employment.
- 2 Whether the defendant failed to remit the plaintiff's withdrawal benefits after resignation.
Ratio Decidendi
The court found that the plaintiff had established, through documentary evidence and unchallenged testimony, that he was entitled to the provident fund benefits deducted during his employment with the defendant. The defendant's own correspondence acknowledged the plaintiff's entitlement and willingness to settle. The defendant failed to appear or contest the claim, and there was no evidence to rebut the plaintiff's case. The court therefore held that the plaintiff was entitled to the sum of Kshs.437,745 as withdrawal benefits, together with costs and interest from 5th October 1994.
Court Disposition
judgment for the plaintiff
Orders
- The defendant shall pay the plaintiff Kshs.437,745 as withdrawal benefits.
- The defendant shall pay costs of the suit to the plaintiff.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI CIVIL CASE NO. 2303 OF 1995
NAZIR MWITHWANI ……………………………. …………… PLAINTIFF
VERSUS
AVOW MARKETTING SERVICES (K) LTD ………………. DEFENDANT
J U D G E M E N T
The plaintiff filed this suit against the defendant on 20th June, 1995 to claim a sum of Kshs.472,745/=. This money was made up as follows:-
1. Kshs. 437,745 - Provident Fund
2. Kshs. 35,000 - Accrued leave
The plaintiff had been employed with the defendant from 21st November 1979 to 19th April, 1994 when he gave 3 month’s notice to resign from employment. The notice was intended to expire around 18th July, 1994 but because of pending leave, the plaintiff utilized part of it as notice period and he left the defendants’ employment in June 1994.
But during his employment, some money was deducted from his salary on account of what the plaintiff called Pension Fund which he was entitled to on leaving employment.
However, when he resigned from the defendant’s employment and requested to be paid this money, he was not so paid, though the defendant promised to forward the amount thereof to him when it received it from the broker, Minet ICDC.
That to the date of filing this suit, the sum sought had not been paid to him, hence the case subject to this judgement.
The case was fixed for hearing on 8th May, 2001, and though counsel for the defendant was served with a hearing notice, neither counsel nor the defendant appeared, hence the same was heard ex parte.
The plaintiff testified in the case and produced relevant documents of employment and resignation. He also produced a certificate of membership of the defendants’ retirement scheme to which his deductions were remitted.
There was also a reply to the demand made to the defendant buy counsel for the plaintiff before this suit was filed (exh.9) in which the defendant acknowledged that the plaintiff was entitled to final dues which the defendant was willing to settle, and copy of a voucher (exh.10) forwarding cheque number 4569 to the defendant for a sum of Kshs.437,745/= being withdrawl benefits for the plaintiff. It was Minet ICDC who forwarded this cheque.
The plaintiff himself testified that he had visited the defendants offices several times at the latter’s request but that no such dues were paid, hence this suit.
Regarding 36 days accrued leave the plaintiff withdrew this claim, otherwise his evidence or withdrawal benefits or what he called pension fund, stands unchallenged due to the non-appearance of the defendant to testify against it.
Consequently, I enter judgement for the plaintiff against the defendant and award him a sum of Kshs.437,745/= plus costs of the suit and interest to accrue from 5th October, 1994.
Delivered and dated this 15th day of May, 2001.
D.K.S AGANYANYA
JUDGE