TRANSPORT & ALLIED WORKERS UNION v DUALE TRANSPORT SERVICES LTD [2013] KEELRC 488 (KLR)
The bottom line
#A Kenyan court ruled that employees receiving NSSF pension payouts cannot also claim service pay, and stale leave claims without written demand fail.
What this practically means
#Executive summary
#Key legal issues
#Service pay entitlement
The claim for service pay fails because the grievant was registered with NSSF, contributions were remitted, and he received a lump sum pension on retrenchment in 2010
The court analysed the facts and found the grievant was registered with NSSF during his employment with the Respondent, which regularly remitted its contributions. The grievant admitted receiving a lump sum pension from NSSF when he stopped working in 2010, which disentitled him to severance from the Respondent when he moved to the purchaser of the truck.
Leave days claim
The claim for payment in lieu of leave for 2006 and 2007 is dismissed as an afterthought and not credible
The grievant did not demonstrate he was owed leave days and made no written demand when he left the Respondent in 2008. The claim surfaced only after his retrenchment by the new employer in 2010, leading the court to find it not credible and to dismiss it.
Whether employment was terminated
The Respondent never terminated the grievant's employment; it helped him transition to the purchaser of the truck
The truck the grievant drove was sold to Eagle Freight, which took him up as a driver with the Respondent's help. He worked for the new company until retrenched in 2010. The court found no termination by the Respondent, so no claim for notice or severance from it arose on that footing.
Salary in lieu of notice
The grievant is entitled to Kshs.20,000, being the one month's salary in lieu of notice the Respondent offered in court
During the hearing the Respondent offered to pay one month's salary in lieu of notice to settle the matter, and the offer was recorded as an order of the Court. The court gave effect to that recorded offer by ordering payment of Kshs.20,000.
Legal principles established
#- An employee registered with NSSF whose contributions were regularly remitted and who received a lump sum pension is not entitled to service pay from the former employer
- A claim for payment in lieu of untaken leave raised long after leaving employment, without prior written demand, is an afterthought and lacks credibility
Court orders
#- 1.Dismissal of the grievant's claims for service pay and payment in lieu of leave days
- 2.Payment of Kshs.20,000 (one month's salary in lieu of notice) to the grievant pursuant to the Respondent's recorded offer
- 3.No order as to costs
- Jurisdiction invoked
- Jurisdiction of the Industrial Court over employment disputes (the judgment does not cite a specific provision)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "TRANSPORT & ALLIED WORKERS UNION v DUALE TRANSPORT SERVICES LTD [2013] KEELRC 488 (KLR)", Case Analysis (2013). Cause 448 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/488/eng@2013-01-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.