[2018] KEELRC 1630 (KLR)
The court found that the claimant, as a member of NSSF, was not entitled to service pay in accordance with section 35(6) of the Employment Act, 2007. However, the court determined that the respondent had failed to remit deducted NSSF and NHIF contributions, as evidenced by the claimant's payslips and the absence of...
Source-derived case information.
- Citation
- [2018] KEELRC 1630 (KLR)
- Parties
- Claimant: Paul Kingori Gatweku; Respondent: Paws Africa Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 369 of 2014
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Judgment for the claimant in part.
- Judges
- B Ongaya
- Legal Topics
- Service Pay, Nssf Contributions, Nhif Contributions, Employment Termination, Remedies for Employees
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Kingori Gatweku
Claimant
Paws Africa Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant is entitled to service pay under section 35(6) of the Employment Act, 2007.
- 2 Whether the respondent failed to remit NSSF and NHIF contributions deducted from the claimant's salary.
- 3 Whether the claimant is entitled to unremitted medical insurance.
Ratio Decidendi
The court found that the claimant, as a member of NSSF, was not entitled to service pay in accordance with section 35(6) of the Employment Act, 2007. However, the court determined that the respondent had failed to remit deducted NSSF and NHIF contributions, as evidenced by the claimant's payslips and the absence of remittance records. The claim for unremitted medical insurance was denied due to lack of evidence. The court awarded the claimant the unremitted NSSF and NHIF amounts and a portion of the costs, ordering payment by a specified date with interest accruing thereafter if unpaid.
Court Disposition
Judgment for the claimant in part.
Orders
- Respondent to pay claimant Kshs. 27,200.00 by 01.09.2018, failing which interest at court rates applies from the date of suit until full payment.
- Respondent to pay part of the claimant's costs of the suit fixed at Kshs. 10,000.00.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA
AT NAIROBI
CAUSE NO. 369 OF 2014
PAUL KINGORI GATWEKU..........................CLAIMANT
- VERSUS -
PAWS AFRICA LIMITED...........................RESPONDENT
(Before Hon. Justice Byram Ongaya on Friday 6th July, 2018)
JUDGMENT
The statement of claim was filed on 11. 03. 2014 through C.G Waithima & Company Advocates. The claimant prayed for judgment against the respondent for:
a. Service due Kshs. 84, 420. 00.
b. Unremitted NSSF dues Kshs.10, 000. 00.
c. Unremitted NHIF Kshs. 7, 200. 00.
d. Unremitted medical insurance Kshs.24, 120. 00.
e. Interest on the above.
f. Costs of the suit.
The response to the claim was filed 29. 07. 2015 through Musyoka Wambua & Katiku Advocates. It was prayed that the suit be dismissed with costs.
It is not in dispute that the respondent employed the claimant as a driver to transport Kenya Airways staff in a contract for service be tween the respondent and the said Kenya Airways. The employment was by the letter dated 01. 02. 2004. The contract of service between parties would terminate if the respondent’s contract for service to provide transport services to Kenya Airways was terminated. The contract for services was terminated effective mid night of 10. 06. 2008. By the letter dated 11. 06. 2008 the respondent notified the claimant that turn of events and that the contract of service between the parties would terminate at mid night of 10. 06. 2008.
The only issue for determination in the case is whether the claimant is entitled to the remedies as prayed for. The Court has considered the pleadings, the evidence and the submissions and makes findings as follows:
a. As submitted for the respondent the claimant was a member of NSSF and service pay of Kshs. 84, 420. 00 as prayed will not be awarded in view of section 35 (6) of the Employment Act, 2007.
b. The NSSF statement filed for the claimant shows deductions for NSSF were made and not remitted as claimed and the claimant is awarded the unremitted NSSF dues Kshs.10, 000. 00 as prayed for.
c. On a balance of probability, the Court finds that the claimant has established that he is entitled to unremitted NHIF Kshs. 7, 200. 00 because he did not have the relevant card and the relevant authority stated that the records were not available yet the pay slip shows the monthly deduction in that regard.
d. The prayer for unremitted medical insurance Kshs.24, 120. 00 is declined for want of justification and relevant evidence.
e . The respondent will pay part of the claimant’s costs of the suit fixed at Kshs. 10,000. 00.
In conclusion judgment is hereby entered for the claimant against the respondent for the respondent to pay the claimant a sum of Kshs.27, 200. 00 by 01. 09. 2018 failing interest at Court rates to be payable thereon from the date of the suit till full payment.
Signed, datedanddeliveredin court atNairobithisFriday 6th July, 2018.
BYRAM ONGAYA
JUDGE