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ELRCDismissedNot stated in excerpt (review of Award dated 12th April 2013)· [2013] KEELRC 554 (KLR)

Daniel Mutisya Masesi v Romy Madan & another [2013] KEELRC 554 (KLR)

Industrial Court (Employment and Labour Relations Court)
19 June 2013
564 words in judgment
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The bottom line

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Kenya's Employment Court refused to overturn a Kshs.369,495 house allowance award because the employer failed to challenge the employee's salary figures during the original hearing.

What this practically means

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Executive summary

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This is a ruling of the Industrial Court at Nairobi, delivered by James Rika, Judge, on 19th June 2013, on the Respondents' application dated 3rd May 2013 seeking review of the Court's Award of 12th April 2013, which granted the Claimant Kshs.369,495 in accumulated house rent allowance. The review was anchored on two grounds: that the Court erred in finding the Respondents had produced no evidence that the Claimant's salary was consolidated including housing, and that the Claimant's 1986 salary was not Kshs.8,300. The Claimant opposed, arguing the Court was functus officio since an appeal had been preferred. The Court accepted that the 2007 contract did contain a consolidation clause and corrected its record accordingly, but held the clause was contradicted by payslips showing Kshs.8,600 as Basic Pay, meaning the contract was either varied or ambiguous - ambiguities being resolved in favour of the employee - so the corrective finding had no practical effect. On the 1986 salary, the figure was pleaded and testified to, never challenged in cross-examination or by contradicting evidence, and the employer, as custodian of employment records, bore the burden of disproving it; the loss of records in a fire did not assist. The General Wage Order was only a floor. The application for review was dismissed with no order as to costs.

Key legal issues

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01

Whether the contract clause providing a consolidated salary including house allowance displaced the house rent allowance award

Holding

No - the clause was contradicted by the pay statements showing Kshs.8,600 as Basic Pay, so the corrective finding had no practical effect on the outcome

Reasoning

The 2007 contract stated a consolidated gross salary including house allowance. However, the April and May 2009 payslips showed a Basic Pay of Kshs.8,600, being the amount paid without any other allowances. The variance suggested the contract was varied after 2007 or contained ambiguities, which are resolved in favour of the employee. Correcting the factual finding therefore had no practical effect.

p. 3
02

Whether the 1986 starting salary of Kshs.8,300 could be disturbed on review

Holding

No - the figure was pleaded, testified to, and never challenged in cross-examination or by contradicting evidence

Reasoning

The Claimant testified he was paid Kshs.8,300 in 1986; there was no cross-examination on this rate and no contradicting evidence. A party alleging on review that an amount is too high does not discharge its burden. The employer keeps custody of employment records and should have contradicted the figure through records or witness evidence; loss of records in a fire did not assist.

p. 3

Legal principles established

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  • Ambiguities in a contract of employment must be resolved in favour of the employee
  • The General Wage Order provides only the wage floor; parties are free to negotiate above it
  • The employer, who keeps custody of employment records, bears the burden of contradicting an unchallenged pleaded and testified salary figure

Court orders

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  1. 1.The record is corrected to show that the contract of employment contained a clause stating the Claimant would be paid a consolidated salary
  2. 2.The application for review dated 3rd May 2013 is dismissed with no order on the costs

Authorities

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Legislation

  • General Wage Orderwage floor provisions
Jurisdiction invoked
Review jurisdiction of the Industrial Court over its own Award

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, "Daniel Mutisya Masesi v Romy Madan & another [2013] KEELRC 554 (KLR)", Case Analysis (2013). Not stated in excerpt (review of Award dated 12th April 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/554/eng@2013-06-19

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