Julius Gatete Ihomba v Wells Fargo Limited [2013] KEELRC 108 (KLR)
The bottom line
#A Kenyan court awarded a retired security guard Kshs.560,000 in gratuity, ruling that favourable wage orders override the employer's legal defences.
What this practically means
#Executive summary
#Key legal issues
#Entitlement to service gratuity under the Protective Security Services wage order
The Claimant, having served 16 years in the Guards department and not in management, was entitled to service gratuity at the agreed sectoral rate of 18 days' salary per completed year of service.
The Claimant's pay slip showed he was in the Guards department, not management. Colleagues similarly registered with NSSF were paid gratuity, and that evidence was uncontroverted. Section 26(2) of the Employment Act makes more favourable terms in a regulation applicable over Part VI, so Section 35(6)(d) relied on by the Respondent did not apply.
Discrimination in payment of terminal benefits
The Respondent's failure to pay gratuity to the Claimant while paying similarly situated colleagues amounted to unjustified discrimination.
Evidence showed Peter Kilonzo and Julius Odero, both NSSF-registered like the Claimant, were paid gratuity upon termination or resignation. The Respondent produced no evidence to justify the differential treatment; its witness's only reason was that the Claimant was a manager, contradicted by his own pay slip.
Legal principles established
#- Wage orders/regulations fixing terms of service are binding and enforceable as part of the contract of service, and more favourable statutory terms prevail over Part VI of the Employment Act per Section 26(2).
Court orders
#- 1.Judgment entered for the Claimant for payment in lieu of notice and arrear salary in the sum of Kshs.91,258/=
- 2.The Claimant awarded service gratuity of Kshs.560,000/= for 16 years of service
- 3.The Respondent to pay the entire judgment amount of Kshs.650,948/= with interest at court rates from 14th January, 2010
- 4.The Respondent to pay costs of the suit
- Jurisdiction invoked
- Employment and labour relations dispute under the Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Julius Gatete Ihomba v Wells Fargo Limited [2013] KEELRC 108 (KLR)", Case Analysis (2013). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/108/eng@2013-09-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.