[2021] KEELRC 231 (KLR)
The Court held that since the claimants did not contest the respondent's computation after it was filed, and given that the employer is statutorily deemed the custodian of employment records under the Employment Act, 2007, the respondent's computation is authoritative. Disparities in salary and years of service...
Source-derived case information.
- Citation
- [2021] KEELRC 231 (KLR)
- Parties
- Applicant: Patrick Mayamba, Simon Musembi, Richard Oduor and 47 others; Respondent: Afro Plastics Kenya Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 566 of 2010
- Procedural Posture
- Employment Cause / Post Judgment Computation and Adoption of Final Figures
- Outcome
- Respondent's computation adopted as final; judgment entered per respondent's figures; no order as to costs.
- Judges
- MN Nduma
- Legal Topics
- Unfair Termination, Salary Computation, Service Gratuity, Notice Pay
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Patrick Mayamba, Simon Musembi, Richard Oduor and 47 others
Applicant
Afro Plastics Kenya Limited
Respondent
Procedural Posture
Employment Cause / Post Judgment Computation and Adoption of Final Figures
Legal Issues
- 1 Whether the computation of awards for each claimant should be based on the employer's or claimants' records.
- 2 Whether disparities in salary and years of service can be revisited at the computation stage.
- 3 Which party's employment records are deemed authoritative under the Employment Act, 2007.
Ratio Decidendi
The Court held that since the claimants did not contest the respondent's computation after it was filed, and given that the employer is statutorily deemed the custodian of employment records under the Employment Act, 2007, the respondent's computation is authoritative. Disparities in salary and years of service should have been addressed at the judgment stage, not at the computation stage. Therefore, the computation filed by the respondent is adopted as the final order of the Court, and judgment is entered accordingly for each claimant based on those figures. No order as to costs was made.
Court Disposition
Respondent's computation adopted as final; judgment entered per respondent's figures; no order as to costs.
Orders
- The computation filed by the respondent and dated 27th July, 2021 is adopted as an order of the Court.
- Judgment is entered in respect of each claimant according to the respondent's computation.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CAUSE NO. 566 OF 2010
PATRICK MAYAMBA, SIMON MUSEMBI,
RICHARD ODUOR AND 47 OTHERS............................................CLAIMANTS
VERSUS
AFRO PLASTICS KENYA LIMITED............................................RESPONDENT
RULING
1. Hon. Abuodha, J. delivered a judgment in this matter on 28th June,2018. An application to review the judgment was considered by the trial Court and the same was dismissed in a ruling dated 11thMarch, 2021.
2. In the judgment of 29th June, 2018, the Court found in favour of theclaimants and awarded them under paragraphs 22 and 23 of the judgment as follows:-
Paragraph 22 of the Judgment-
The Court in conclusion finds and holds that the claimant’s services were unfairly terminated and awards each of them as follows:-
(a) One month’s salary in lieu of notice.
(b) Service gratuity at the rate of 15 days salary for each year ofservice.
(c) Eight months’ salary as compensation for unfair termination.
(d) Costs of the suit.
Paragraph 23 of the Judgment
Items (a) (b) and (c) shall be subject to taxes and statutory deductions. Considering the numbers involved, Counsel for the parties shall liaise with their respective clients and compute the actual amount due to each claimant based on the heads of compensation above and report to Court for recording of final order.
3. The parties have filed their respective computations dated 22nd July,2021. The Court has carefully considered both computations and noted that there is disparity in the monthly salary paid to each claimant as stated by the claimantsvis a visthat provided by the respondents.
4. The monthly salary is the basis of computation of other items includingnotice pay, service pay and compensation awarded to each of the claimants. Another point of departure which has also caused disparity in the total sums awarded to each employee is the number of years served by each one of them.
3. These disparities ordinarily ought to have been resolved in thejudgment of the Court and cannot be revisited at the stage of computation.
4. The employer is deemed to be the custodian of Employment recordsin terms of Part III, Sections 9 to 15 as read with Section 74(1) of the Employment Act, 2007.
5. The claimant filed its computation first followed by the respondent.
The claimant has not joined issue with the computation filed by the respondent subsequent to the filing by the respondent. The Court in the circumstances deems the record provided by the employer regarding particulars of employment of each claimant to be the correct version with regard to the date of employment, the period served and the salary earned by each of the claimants at the time of separation.
6. Accordingly, the Court adopts the computation filed by therespondent and dated 27thJuly, 2021 as an order of the Court and enters judgment in respect of each claimant according to the said computation which the Court deems an addendum to this ruling for purposes of taking out a decree.
7. It is so ordered. No order as to costs.
DATED AND DELIVERED AT NAIROBI (VIRTUALLY) THIS 9TH DAY OF DECEMBER, 2021.
MATHEWS N. NDUMA
JUDGE
Appearances
Mr. Anam for the claimant
Mr. Mbabu for Respondent
Ekale- Court clerk