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ELRCPartially AllowedCause 696 of 2012· [2012] KEELRC 174 (KLR)

ALBERT MBUGUA KIMAMA V WINKA HOLDINGS LTD [2012] KEELRC 174 (KLR)

Industrial Court of Kenya
30 November 2012
1,513 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan school bus driver won back-pay for underpaid wages, contractual service pay, and unused leave — but lost higher service pay because he was an NSSF member.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a driver of a school bus for Winka Academy from 23rd May 2005, voluntarily resigned effective 8th February 2012. The Respondent's acceptance letter offered service pay at 5 days per completed year, which the Claimant disputed. A dispute reported to the Ministry of Labour elicited a Respondent reply conceding 46.5 accrued leave days, admitting some underpayment, and offering service pay at the 5-day rate guided by sections 35(5), (6) and 36 of the Employment Act 2007. The Claimant sought orders that terminal dues be computed per the Ministry's recommendations and ratified by the court. The court framed three issues: arrears of salary from underpayment, service pay, and leave days. It held that as a driver of vehicles between 2.85 and 4.3 tons (medium category), the Claimant was entitled to prescribed minimum wages plus 15% house allowance for each year of service, and to the difference between amounts paid and due. On service pay, although NSSF membership excluded statutory service pay under section 35(5) and (6), the Claimant was entitled to the contractual 5 days per completed year promised in the resignation acceptance letter. Leave of 46.5 days was undisputed and payable. The court declined to set off school fees paid for the Claimant's children against his dues for want of evidence, and noted that the Respondent had not claimed one month's notice pay for the resignation. Costs were ordered in light of the Claimant's refusal to engage in settlement.

Key legal issues

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01

Underpayment of salary

Holding

The Claimant was entitled to statutory minimum wages for a medium-size vehicle driver plus 15% house allowance, and is owed the difference between amounts paid and amounts due.

Reasoning

The court established the applicable wage rates for each year of service from May 2005 to February 2012 based on the tonnage of vehicles driven (2.85 to 4.3 tons, a medium category). The Claimant was paid Kshs.7,000 from June 2005 to July 2008 and thereafter Kshs.10,500, less than the prescribed rates. He was entitled to the difference, computed on basic salary up to July 2008 and consolidated salary thereafter.

p. 3
02

Service pay on resignation

Holding

Contractual service pay at 5 days per completed year is payable, but statutory service pay under section 35(5) and (6) is excluded because the Claimant was an NSSF member.

Reasoning

The Claimant's contract provided service pay at 5 days per completed year, which the Respondent acknowledged in its letter accepting the resignation. Although NSSF membership excludes statutory service pay, the contractual promise in the acceptance letter bound the Respondent, so the 5-day rate applies rather than the 15-day rate demanded via the Ministry of Labour.

p. 4
03

Accrued leave days

Holding

The Claimant is entitled to pay in lieu of 46.5 accrued leave days, as confirmed by the Respondent.

Reasoning

The Respondent's own records and reply to the Ministry of Labour confirmed 46.5 leave days as payable, so the issue was not in dispute and the court awarded pay in lieu accordingly.

p. 4

Legal principles established

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  • An employee who was a member of NSSF is not entitled to statutory service pay under section 35(5) and (6) of the Employment Act, but remains entitled to contractual service pay.
  • A driver of a school bus (vehicle between 2.85 and 4.3 tons) falls into the medium-size vehicle wage category and is entitled to prescribed minimum wage plus 15% house allowance.

Court orders

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  1. 1.Claimant entitled to underpayments (arrears of salary)
  2. 2.Claimant entitled to service pay at the rate of 5 days salary for every complete year worked
  3. 3.Claimant entitled to pay in lieu of 46.5 days annual leave
  4. 4.Costs awarded against the Claimant's expectations - costs orders made with the court noting the Claimant refused settlement discussions
Jurisdiction invoked
Industrial Court jurisdiction over employment disputes (Employment Act; dispute reported to Ministry of Labour)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "ALBERT MBUGUA KIMAMA V WINKA HOLDINGS LTD [2012] KEELRC 174 (KLR)", Case Analysis (2012). Cause 696 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2012/174/eng@2012-11-30

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.