[2022] KEELRC 13267 (KLR)
The court found that the claim for salary arrears was time-barred under section 90 of the Employment Act, 2007, as the alleged arrears accrued more than three years before the suit was filed. The claims for underpayment of wages and leave allowance failed because the claimant did not specify the relevant periods,...
Source-derived case information.
- Citation
- [2022] KEELRC 13267 (KLR)
- Parties
- Applicant: Livingstone Kisali Onzere; Respondent: Jebrok Farmers Co-operative Society Ltd; Respondent: Daniel Agonya Onzere; Respondent: Levy Chore Lundu; Respondent: Buffalo Kinyaga
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Cause 322 of 2016
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- claim dismissed
- Judges
- S Radido
- Legal Topics
- Breach of Employment Contract, Salary Arrears, Underpayment of Wages, Leave Allowance, Statutory Contributions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Livingstone Kisali Onzere
Applicant
Jebrok Farmers Co-operative Society Ltd
Respondent
Daniel Agonya Onzere
Respondent
Levy Chore Lundu
Respondent
Buffalo Kinyaga
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claim for salary arrears was time-barred under section 90 of the Employment Act, 2007.
- 2 Whether the claimant proved entitlement to underpayment of wages.
- 3 Whether the claimant was entitled to leave allowance under the law or contract.
Ratio Decidendi
The court found that the claim for salary arrears was time-barred under section 90 of the Employment Act, 2007, as the alleged arrears accrued more than three years before the suit was filed. The claims for underpayment of wages and leave allowance failed because the claimant did not specify the relevant periods, amounts, or legal basis for such claims. The claim for NSSF contributions was dismissed due to lack of evidence of registration or entitlement. The claimant, despite the matter being undefended, failed to discharge the burden of proof required to establish the claims on a balance of probabilities. Consequently, the entire cause was dismissed for lack of proof to the required...
Court Disposition
claim dismissed
Orders
- The entire cause is dismissed for lack of proof to the required standard.
Full Case Text
Judgment text and source record
41 paragraphs
Onzere v Jebrok Farmers Co-operative Society Ltd & 3 others (Cause 322 of 2016) [2022] KEELRC 13267 (KLR) (23 November 2022) (Judgment)
Neutral citation: [2022] KEELRC 13267 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Kisumu
Cause 322 of 2016
S Radido, J
November 23, 2022
Between
Livingstone Kisali Onzere
Claimant
and
Jebrok Farmers Co-operative Society Ltd
1st Respondent
Daniel Agonya Onzere, Chairman Jebrok Farmers Co-operative Society Ltd
2nd Respondent
Levy Chore Lundu, Secretary Farmers Co-operative Society Ltd
3rd Respondent
Buffalo Kinyaga, Treasurer Farmers Co-operative Society Ltd
4th Respondent
Judgment
1. Livingstone Kisali Onzere (the claimant) sued the respondents on October 3, 2016, alleging breach of contract (failure to pay salaries and statutory dues)
2. The respondents filed a notice of preliminary objection on October 19, 2018.
3. Despite entering an appearance on October 19, 2018, the respondents did not file a response, and on March 18, 2019, the court directed that the cause proceeds to formal proof.
4. The claimant's testimony was taken on October 15, 2019, after which the court granted the claimant leave to file an amended memorandum of claim.
5. The claimant filed an amended memorandum of claim on December 9, 2019, introducing heads of claims for underpayment of wages and leave allowance. The amended claim was served, and the respondents did not file a response again.
6. The hearing commenced afresh, and the claimant’s testimony was taken on September 27, 2022.
7. The claimant filed submissions on October 25, 2022.
8. The court has considered the pleadings, evidence, and submissions.
Salary Arrears 9. The action presented by the claimant arose out of a contract of service. The claims for Kshs 381,120/- relate to salary arrears stated to have accrued from the date of employment in 1999 and run for 10 years. The 10 years must have lapsed on or around 2009.
10. The claimant moved the court on December 14, 2016, and by dint of section 90 of the Employment Act, 2007, the claims had become stale.
11. The same is caught by a plea of time-bar.
Underpayments 12. The claimant also pitched for underpayment of wages from 1999 to the date of filing/hearing but did not set out in the amended memorandum of claim the relevant periods or the amount of underpayments.
13. The claimant did not also disclose the prescribed minimum wages during the period under contention.
14. Relief is declined.
Leave allowance 15. The claimant prayed for unpaid leave allowance from 1999 to the date of trial. The general law of employment, the Employment Act, 2007, does not provide for any entitlement to leave allowance.
16. The claimant did not reveal the source or any other lawful foundation to this head of the claim.
17. Relief is declined.
National Social Security Fund Contributions 18. The claimant did not provide the court with any evidence that he was registered with the National Social Security Fund, and therefore the court declines the request for payment of dues owing to the fund.
19. The claimant was represented by an advocate. The pleadings were casually prepared. The cause was also not prosecuted with diligence.
Conclusion and Orders 20. Despite being undefended, the court dismisses the cause for lack of proof to the required standard.
DELIVERED THROUGH MICROSOFT TEAMS, DATED AND SIGNED IN KISUMU ON THIS 23RD DAY OF NOVEMBER 2022. Radido Stephen, MCIArbJudgeAppearancesFor Claimant Ben Aduol Nyanga & Co. AdvocatesFor Respondents Amena Amendi J & Co. AdvocatesCourt assistant Chrispo Aura