Daniel Mutisya Masesi v Romy Madan & another [2013] KEELRC 554 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the contract clause providing a consolidated salary including house allowance displaced the house rent allowance award
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
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.
Whether the 1986 starting salary of Kshs.8,300 could be disturbed on review
No - the figure was pleaded, testified to, and never challenged in cross-examination or by contradicting evidence
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.
Legal principles established
#- 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
#- 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.The application for review dated 3rd May 2013 is dismissed with no order on the costs
- Jurisdiction invoked
- Review jurisdiction of the Industrial Court over its own Award
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.