[2023] KEELRC 2857 (KLR)

Nyaoro v Freight in Time Limited (Cause 371 of 2019) [2023] KEELRC 2857 (KLR) (10 November 2023) (Judgment)

Neutral citation: [2023] KEELRC 2857 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Cause 371 of 2019

B Ongaya, J

November 10, 2023

Between

Alice Nyaoro

Claimant

and

Freight In Time Limited

Respondent

Judgment

1. The claimant filed the Memorandum of claim dated 10. 06. 2019 through Okoth Okwemba S.M & Associates Advocates. The claimant prayed for judgment against the respondent for:a.A declaration that withholding of claimant’s salary and terminal dues is unlawful, un-procedural and unjustified.b.Payment of march salary Kshs.350,000 (full month).c.Payment of days worked in April 70,000 (6 days).d.Payment 13 days is unlawfully deducted 151,667. e.Payment of leave days accrued while working in Tanzania USD 2022 (15. 17 days).f.Payment of leave days accrued in Kenya Kshs.39,433 (3. 38 days).g.Car allowance Kshs.19,500 – (36,000 *6. 5 months)h.Damages for unlawful withholding of salary and terminal dues.i.Interest on (b), (c), (d), (e), (f) (g) at court rates from the date of filing the suit until payment in full,j.Costs of the suit.k.Any other remedy that this honourable court may deem fit to grant.

2. The Statement of Reply dated 12. 07. 2019 was filed through Otieno Arum & Company Advocates. The respondent prayed for:a.The claimant’s claim to be dismissed with costs to the respondentb.The claimant pays the respondent one (1) month notice in lieu of notice for the unserved notice pursuant to clause 4 of the employment contract between the parties.c.The deductions of the claimant’s 13. 5 days be confirmed for absence from work without a valid excuse.d.The claim for leave days allegedly accrued in Tanzania be dismissed.e.The claim for leave days accrued while working for the respondent be dismissed since the claimant had already utilized the entire 10. 5 days accrued leave before she left the respondent’s employ.f.The claim for car maintenance be dismissed as this was not agreed between the parties.g.Claim for damages for unlawfully withholding of salary be dismissed since the claimant has neglected to collect her dues as instructed by the respondent.h.The claimant be ordered to collect her terminal dues of Kshs.169,667. 16 (as computed by the respondent).i.Any other relief that the honourable court may deem fit to grant.

3. The claimant’s case was that she was an employee of the respondent employed as a commercial manager in Tanzania but later transferred to work in Kenya in the same capacity.

4. The claimant states that she wrote a letter of resignation on 07. 03. 2019 and gave a one month notice as per clause 3 of her appointment letter, which was acknowledged by the respondent vide a letter dated 08. 04. 2019.

5. That the claimant on 08. 03. 2019 requested the human resource manager to provide her with an update on leave days and the human resource manager replied via email stating that the claimant’s leave balance was 15 days.

6. In reply, the claimant wrote an email to the human resource, stating that her leave days were 18. 8 (Tanzania leave days 15. 17 and Kenya leave days are 3. 38) and indicated her workings, however, the human resource manager did not respond to said email.

7. The claimant states that on 13. 03. 2019 she wrote an email to the general manager requesting for workings of her final dues, to which she did not get a response.

8. On 22. 03. 2019 she wrote a reminder to the general manager as well as escalated the matter to the country manager, however she was redirected to the human resource manager, who did not respond.

9. On 04. 04. 2019 the respondent forwarded a copy of the workings of her terminal dues. It is the claimant’s case that the respondent unlawfully deducted 13 days from her terminal dues, miscalculated her leave days and omitted leave days that were accrued in Tanzania - which leave days the respondent had undertook to pay when the claimant moved to Kenya.

10. The claimant enquired about the 13 days that were deducted, to which the respondent shared an excel sheet and indicated that the claimant was not at the work station on the stated times, which cumulatively amounted to 13 days.

11. The claimant contends that the 13 days deduction was unjust and an afterthought, since, she had never been summoned to a disciplinary hearing for missing work.

12. The claimant stated that the nature of her work as commercial manager working for two entities of the respondent did not require her to be seated on a desk from 8am to 5 pm, for reasons that she was constantly attending meetings.

13. The claimant stated that it was impossible for her to rebut the allegations made, since she had handed the respondent all company documents, telephone, email account and the days and hours spread for over 6 months and that the issue of absence from work was being raised after she had resigned and physically left the employment.

14. On the part of the respondent it is argued that the claimant was required to give a two (2) month notice as stipulated by clause 4 of the employment contract, however, the claimant only served one (1) month notice.

15. The respondent maintains that it duly computed the claimant’s dues and supplied the claimant with the computation of the terminal dues, and also made deductions of 13. 5 days on account that the claimant failed or neglected to report to work without a valid excuse.

16. The respondent’s case is that the human resource manager made the discovery when updating the leave and attendance records and after checking with the country manager who was the claimant’s line manager, and as a result the human resource manager made the decision to deduct the said 13. 5 days.

17. The respondent contends that it never committed to paying any leave days allegedly accrued in Tanzania where the claimant worked before joining the respondent.

18. The respondent maintains that it has not withheld the salary for March 2019 and days worked in April of the same year. Further, it is stated that all the monies were computed and a cheque of Kshs.169,667. 14 was drawn in favour of the claimant.

19. The claimant filed a Notice of Motion application dated 10. 06. 2019, however, the said application was on 26. 06. 2019 dispensed with by oral consent of the parties, which was adopted in open court.

20. The respondent has since filed a Notice of Motion Application dated 25. 10. 2023 seeking to substitute its witness. Accordingly, the court on 27. 10. 2023 directed that the application be served forthwith for further directions thereon after the delivery of this judgment.

21. The claimant testified to support her case by essentially adopting her witness statement. The respondent did not call a witness but filed the application dated 25. 10. 2025 seeking to reopen the case to place on record a witness statement and to call the witness in circumstances that the claimant had closed his case. The Court considers that line of prosecuting the case seriously prejudicial to the claimant. The claimant filed final submissions. The Court has considered all the material on record. The Court returns as follows.

22. The only issue for determination is whether the claimant is entitled to final dues as claimed and prayed for. The respondent calculated the final dues amounting to a net of Kshs.169, 667. 16 and a cheque issued dated 08. 04. 2019. It appears the claimant declined to accept the cheque. She wrote a letter to resign dated 07. 03. 2019 and acknowledged by the respondent by letter dated 08. 03. 2019. The Court has considered the material on record and returns as follows on the amounts. She claims March salary Kshs.350,000. 00 which the respondent has computed as not in dispute. She claims Kshs.70,000. 00 for 6 days worked in April which the respondent computed at Kshs.80,769. 23. She claims 13 days are unlawfully deducted at Kshs.151,667. 00 for alleged absence from work in October 2018 while no disciplinary case was initiated in that regard. The Court finds that the respondent has not shown that indeed the absence was reported and in accepting the resignation letter, the same was not raised at all. The respondent must be bound. It cannot be that she was absent and no action taken for all that period till she resigned. The deduction is found unfair. She claims 15. 7 leave days accruing while she worked in Tanzania USD 2022 and 3,38 days accrued while she served in Kenya Kshs.39, 433. The claimant has stated in her witness statement that at times she worked at the field and upon days she could not tell. The claimant has not also particularised the periods for which leave days claimed accrued and the agreed formula for the computation. Thus, on a balance of probability, the Court finds that the claimant has failed to establish the basis of the leave days claimed. It was that she particularises and strictly proves the special damages which she has failed to do. No evidence was moved to justify the car allowance. While clause 9 of contract provided for 100 litres per month, it is not shown why money is being claimed and the basis of the amount. It appears that it was fuel is provided not the money equivalent and which appears at large. It is declined as not proved.In conclusion judgment is entered for the claimant for the respondent to pay as follows:a.March salary Kshs.350,000. 00. b.April Salary Kshs.70,000. 00. c.The sum above payable by 15. 12. 2023 failing interest rate at Court rates be payable from the date of filing the suit till full payment.d.The respondent to pay costs of the suit.

SIGNED, DATED AND DELIVERED BY VIDEO-LINK AND IN COURT AT NAIROBI THIS FRIDAY 10TH NOVEMBER, 2023. BYRAM ONGAYAPRINCIPAL JUDGE