[2018] KEELRC 1708 (KLR)
The court found that the claimant had established his entitlement to unpaid terminal dues for the period 1980 to 1995, as the respondent failed to produce the CBA allegedly limiting service pay to post-1996 employment. The court also found that the claim for May 2015 salary was established, as the respondent...
Source-derived case information.
- Citation
- [2018] KEELRC 1708 (KLR)
- Parties
- Claimant: Patrick Ambura Angweye; Respondent: Kel Chemicals Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1530 of 2015
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- judgment for the claimant in part
- Judges
- B Ongaya
- Legal Topics
- Terminal Dues, Service Pay, Retirement Benefits, Salary Arrears
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Patrick Ambura Angweye
Claimant
Kel Chemicals Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant is entitled to unpaid terminal dues for the period 1980 to 1995.
- 2 Whether the claimant is entitled to salary for May 2015.
- 3 Whether the respondent unlawfully deducted Kshs.18,259.00 from the claimant's final dues.
Ratio Decidendi
The court found that the claimant had established his entitlement to unpaid terminal dues for the period 1980 to 1995, as the respondent failed to produce the CBA allegedly limiting service pay to post-1996 employment. The court also found that the claim for May 2015 salary was established, as the respondent admitted the claimant worked up to 31.05.2015 and offered no explanation for non-payment. The claim for deducted arrears of Kshs.18,259.00 failed due to lack of evidence. The respondent's failure to attend the hearing or present evidence meant the claimant's testimony was unchallenged and accepted on a balance of probabilities.
Court Disposition
judgment for the claimant in part
Orders
- The respondent to pay the claimant Kshs.99,412.00 by 01.08.2018, failing which interest at court rates shall accrue from the date of suit until full payment.
- The respondent to pay costs of the suit.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NAIROBI
CAUSE NO.1530 OF 2015
PATRICK AMBURA ANGWEYE............ CLAIMANT
- VERSUS -
KEL CHEMICALS LIMITED..............RESPONDENT
(Before Hon. Justice Byram Ongaya on Friday 22nd June, 2018)
JUDGMENT
The claimant filed the memorandum of claim on 01. 09. 2015 through Ameli Inyangu & Partners Advocates. The prayer is for:
a. Unpaid terminal dues for 1980 to 1995 Kshs.87, 696. 00.
b. Salary for May 2015 Kshs.11, 716. 00.
c. Deductions made to claimant’s terminal dues Kshs.18, 259. 00.
d. Total Kshs.117, 671. 00.
e. Costs of the suit plus interest.
The claimant was employed as a machine operator in April 1980 and remained in the respondent’s employment until 31. 05. 2015 when they mutually agreed that the claimant should retire. At retirement the claimant earned Kshs.13, 255. 00 per month.
It was agreed that the claimant is paid 15 days for each year served in service pay but the respondent paid only effective 1996 instead of 1980. Further, salary for May 2015 was not paid. Further, the respondent made unexplained deduction of Kshs. 18,259. 00 from the claimant’s final dues. The claimant filed the present suit to claim the unpaid terminal dues.
The respondent filed the response on 21. 10. 2015 through Otieno Maangi & Company Advocates. The defence stated as follows:
a. The CBA provided that the claimant would earn service pay from 01. 01. 1996. Service pay for 01. 01. 1996 to 2015 was paid.
b. The claimant had worked from April 1980 to 2015 as claimed.
c. The respondent denied the deduction of Kshs.18, 259. 00 from final dues.
d. The respondent contributed NSSF from 1980 to 1996 and throughout the service.
Despite service the respondent did not attend the hearing and did not present a witness. The claimant testified to support his case. The Court makes the following findings:
a. The claimant testified that the mutual agreement was that he be paid 15 days for each year of service. The respondent has pleaded that the service pay was not due under a CBA provision but the CBA was not filed. The court returns that the claimant has established the claim on a balance of probabilities.
b. The respondent has offered no explanation about the claim for May 2015 salary. The respondent admits that the claimant worked up to 31. 05. 2017. The Court returns that the claimant has established the claim and prayer.
c. The claimant testified that he did not know the computed arrears. The claim for deducted arrears will therefore fail as not established.
In conclusion judgment is hereby entered for the claimant against the respondent for:
1. The respondent to pay the claimant Kshs.99, 412. 00 by 01. 08. 2018 failing interest at Court rates be payable thereon from the date of the suit till full payment.
2. The respondent to pay costs of the suit.
Signed, datedanddeliveredin court atNairobithisFriday 22nd June, 2018.
BYRAM ONGAYA
JUDGE