Parbat Siyani Construction Ltd v Daniel Kiprob Ayabei [2020] KECA 530 (KLR)
The bottom line
#Kenya's Court of Appeal cut a construction worker's award by refusing house allowance that was never specifically pleaded in his claim.
What this practically means
#Executive summary
#Key legal issues
#Entitlement to house allowance
The house allowance award of Kshs 661,500 was set aside because house allowance was never pleaded; the salary was inferred to be consolidated
The pleadings disclosed no claim for house allowance. Special damages must be specifically pleaded and strictly proved. The court also noted the respondent never raised house allowance during nearly three years of employment, supporting the inference that the salary was consolidated. The trial court therefore erred in awarding an unpleaded head of damages.
Entitlement to service gratuity
Gratuity upheld in principle but recomputed at Kshs 148,691 based on the correct salary; the NSSF/NHIF defence failed for lack of proof
Section 36(6) of the Employment Act bars gratuity where the employee is an NSSF/NHIF member and deductions are made, but the employer produced only its own payment schedules, no payslips, no NSSF/NHIF statements and no membership number, so membership was not proved. Gratuity under rule 19(1)(c) of the Wages Order was therefore payable but had to be recalculated on the correct monthly salary.
Monthly salary determination
The court found the monthly salary to be Kshs 106,208 (consolidated), rejecting the respondent's claim that it was exclusive of house allowance
The trial judge never determined the monthly salary. On re-evaluation, the respondent himself said he was employed at 80,000 rising to 106,000 exclusive of house allowance, and DW1 gave a similar figure. The court inferred a consolidated salary, which affected the computations of wages, gratuity and house allowance.
Clearance before payment of dues
The appellant's allegation that the respondent refused to clear over a stock variance of Kshs 5.9 million was unsupported; the respondent was entitled to his dues
No clearance instructions were issued, no demands made, no audit report produced and no police records tendered. DW1's cross-examination undermined the allegation. An employee who gives due notice and is given no clearance instructions is entitled to final dues and a Certificate of Service under section 51 of the Employment Act.
Standard of review on first appeal
The Court applied the settled first-appeal standard: re-evaluate the evidence and reach own conclusions, interfering with findings of fact only if based on no evidence
Citing Selle vs Associated Motor Boat Co and Jabane vs Olenja, the Court restated its duty on a first appeal to analyze and evaluate the evidence afresh while remembering it did not hear the witnesses, and its reluctance to interfere with trial court findings of fact unless they are based on no evidence.
Legal principles established
#- Special damages must be specifically pleaded and strictly proved before they can be awarded; a trial court cannot award unpleaded special damages
- Where an employer relies on NSSF/NHIF contributions to defeat a gratuity claim, it must prove the employee's membership and actual remittance of contributions, not merely produce its own payment schedules
- On a first appeal, the court is duty-bound to re-evaluate the evidence and reach its own conclusions while bearing in mind that it did not see or hear the witnesses
- An employee who gives proper notice of termination and against whom no clearance instructions are issued is entitled to final employment dues and a Certificate of Service
Court orders
#- 1.The appellant to pay the respondent 7 months leave days for 2012 Kshs. 73,146.65
- 2.The appellant to pay the respondent 3 years' gratuity at 14 days a year at Kshs. 148,691
- 3.The appellant to issue the respondent with a Certificate of Service
- 4.Each party to bear their own costs in the Employment and Labour Relations Court and in this Court
- On appeal from
- Employment and Labour Relations Court of Kenya at Nairobi
- Employment & Labour Relations Cause No. 276 of 2013
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (Constitution of Kenya, Article 164) against the judgment of the Employment and Labour Relations Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Parbat Siyani Construction Ltd v Daniel Kiprob Ayabei [2020] KECA 530 (KLR)", Case Analysis (2020). Civil Appeal No. 52 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/530/eng@2020-07-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.