[2018] KEELRC 400 (KLR)
The court found that all the Claimant's claims fell within the category of special damages, which must be specifically pleaded and strictly proved. The Claimant failed to provide evidence that he was entitled to transport allowance, had actually incurred the claimed expenses, or had worked overtime and performed...
Source-derived case information.
- Citation
- [2018] KEELRC 400 (KLR)
- Parties
- Claimant: Peter Njoroge Kamau; Respondent: The Aga Khan Health Services t/a The Aga Khan University Hospital Nairobi
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1093 of 2011
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- claim dismissed
- Judges
- L Ndolo, DO Ogal
- Legal Topics
- Unpaid Dues, Overtime Claims, Transport Allowance, Special Damages, Burden of Proof
- 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
Peter Njoroge Kamau
Claimant
The Aga Khan Health Services t/a The Aga Khan University Hospital Nairobi
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the Claimant proved his claim for unpaid dues as pleaded in the Statement of Claim.
- 2 Whether the Claimant was entitled to transport allowance, overtime, and payment for additional duties performed.
Ratio Decidendi
The court found that all the Claimant's claims fell within the category of special damages, which must be specifically pleaded and strictly proved. The Claimant failed to provide evidence that he was entitled to transport allowance, had actually incurred the claimed expenses, or had worked overtime and performed additional duties as alleged. The Respondent's evidence indicated no record of extra hours worked, and the Claimant did not produce any supporting documentation. Consequently, the court held that the Claimant had not discharged the burden of proof required to succeed in his claims. All claims were therefore dismissed.
Court Disposition
claim dismissed
Orders
- The Claimant's claim is dismissed in its entirety.
- Each party will bear their own costs.
Full Case Text
Judgment text and source record
42 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CAUSE NO 1093 OF 2011
PETER NJOROGE KAMAU........................................................................CLAIMANT
VS
THE AGA KHAN HEALTH SERVICES T/A
THE AGA KHAN UNIVERSITY HOSPITAL NAIROBI....................RESPONDENT
JUDGMENT
Introduction
1. By a Statement of Claim dated 26th May 2011 and filed in court on 7th July 2011, the Claimant sued the Respondent for unpaid dues. The Respondent filed a Memorandum of Reply on 3rd August 2011.
2. The matter came up for hearing before me on 22nd November 2018 during the Nairobi Station Service Week. The Claimant testified on his own behalf and the Respondent called its Manager-Employee Relations, Dorothy Odero.
The Claimant’s Case
3. The Claimant was employed by the Respondent vide contract of employment dated 9th March 1986. The Claimant worked until February 2010 when he resigned.
4. He now claims unpaid dues as follows:
a) Transport (from Aga Khan to Kingeero shift 3 pm – 9 pm
May 2003-December 2003)………………………………………..……….Kshs. 1,450
b) Overtime for 56 hours (May 2003-December 2003)……..……………16,576
c) Transport (June 2006-February 2010)………………………..………………55,700
d) 1 extra hour (June 2006-February 2010)…………………..……………..120,342
e) Cleaning casualty/pavilionfor 3 years
2 months & 10 days (June 2006-December 2010)………..…………470,695
f) Costs plus interest
The Respondent’s Case
5. In its Memorandum of Reply dated 1st August 2011 and filed in court on 3rd August 2011, the Respondent states that under his contract of employment, the Claimant was only to work for 42 hours per week and that due to the nature of his work, he was expected to be flexible about the hours.
6. The Respondent further states that upon confirmation of employment, the Claimant’s leave entitlement, termination notice and other benefits were in accordance with the Collective Bargaining Agreement as amended from time to time.
7. The Respondent avers that the Claimant resigned by his letter dated 1st September 2009 upon which he was paid all monies due to him.
8. The Respondent’s case is that the Claimant’s claim is short of merit and should therefore be dismissed with costs.
Findings and Determination
9. The single issue for determination in this case is whether the Claimant has proved his claim for unpaid dues as pleaded in the Statement of Claim. With regard to the claim for transport allowance, the Claimant told the Court that he used to report to work early and would therefore not use the official transport provided by his employer. He however did not adduce evidence to prove that first he was within the category of employees entitled to official transport and second whether he actually incurred the expense claimed.
10. On overtime, the Claimant stated that he had been instructed by the Pharmacy Manager to work beyond his normal hours of work. The Respondent’s Manager - Employee Relations, Dorothy Odero testified that there was no record of any extra hours worked by the Claimant and the Claimant himself did not provide any such record.
11. Further, the Claimant did not adduce any evidence in support of his claim that he performed both orderly and cleaning duties.
12. The Claimants claims all fall within the category of special damages which must be specifically pleaded and proved. The Claimant failed to prove any of the claims which therefore fail and are dismissed.
13. Each party will bear their own costs.
DATED AND SIGNED AT MOMBASA THIS 17THDAY OF DECEMBER 2018
LINNET NDOLO
JUDGE
DELIVERED AT NAIROBI THIS 20TH DAY OF DECEMBER 2018
MAUREEN ONYANGO
JUDGE
Appearance:
Mr. Ongwae h/b Njugi for the Claimant
Mrs. Omondi for the Respondent