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ELRCPartially AllowedCause No 2187 of 2012· [2013] KEELRC 677 (KLR)

Boniface Oduor v Josper Limited [2013] KEELRC 677 (KLR)

Industrial Court of Kenya
31 July 2013
913 words in judgment
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The bottom line

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A Kenyan driver who sued for unfair termination lost that claim but won Kshs. 153,059 in unpaid leave, house allowance and service pay.

What this practically means

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Executive summary

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The Claimant, employed as a driver from September 2007, sued the Respondent for unfair termination and unpaid terminal benefits, claiming severance pay, unpaid leave, house allowance, overtime and twelve months' compensation totalling over Kshs. 258,000. The Respondent denied unfair termination, asserting the Claimant was retired upon attaining the mandatory retirement age of 60 after a nine months' retirement notice served on 19th January 2011, and disputed the salary figure claimed. The Court found, on the Claimant's own admission in cross-examination that he was 63 years old when he left and had been notified he had reached retirement age, that the cessation was retirement and not unfair termination, dismissing the unfair termination claim and the claim for one month's salary in lieu of notice. On salary, the Court adopted the statutory minimum wage for a driver under the Regulation of Wages (General) (Amendment) Order, 2012 (Kshs. 11,580), loaded at 15% house allowance to Kshs. 13,317, as the parties gave conflicting figures. Because the Respondent failed to produce leave records as required by Section 74 of the Employment Act, the Court adopted the Claimant's evidence on leave and awarded pay in lieu of leave. House allowance was awarded under Section 31(1) as the Claimant was neither housed nor paid house allowance, and service pay was awarded as admitted. The overtime claim failed for lack of proof. The Court awarded a total of Kshs. 153,059, ordered deductions of any sums owed by the Claimant to the Respondent, and awarded costs to the Claimant.

Key legal issues

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01

Nature of cessation of employment - unfair termination vs retirement

Holding

The claim for unfair termination was dismissed; the Claimant retired upon attaining retirement age, as he admitted being 63 years old at the time he left and having been notified he had reached retirement age.

Reasoning

The Claimant pleaded termination without notice or lawful cause, but in cross-examination he admitted he was 63 years old when he left employment and that the Respondent had notified him he had reached retirement age. The Respondent had served a nine months' retirement notice on 19th January 2011. On this evidence the Court found the cessation was retirement, not unfair termination, and dismissed both the unfair termination claim and the claim for salary in lieu of notice.

p. 2
02

Applicable monthly salary

Holding

The Court adopted the statutory minimum wage for a driver (Kshs. 11,580) plus 15% house allowance, being Kshs. 13,317, as the applicable salary.

Reasoning

The parties gave conflicting figures - the Claimant claimed Kshs. 7,775 while the Respondent asserted Kshs. 6,500. Unable to accept either figure, the Court adopted the applicable minimum wage for a driver (cars and light vans) under the Regulation of Wages (General) (Amendment) Order, 2012, being Kshs. 11,580 exclusive of house allowance, and loaded house allowance at 15% to arrive at Kshs. 13,317.

p. 2
03

Leave, house allowance, service pay and overtime

Holding

Leave pay awarded for the period not taken; house allowance awarded as the Claimant was neither housed nor paid house allowance; service pay awarded as admitted; overtime dismissed as unproved.

Reasoning

The Respondent did not produce leave records as required under Section 74 of the Employment Act, 2007, so the Claimant's evidence that he took leave for only one year was adopted. No evidence showed the Claimant was housed, and pay slips showed only basic salary, so house allowance was allowed under Section 31(1). Service pay was admitted by the Respondent. The overtime claim failed for lack of proof.

p. 2

Legal principles established

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  • Where an employer fails to produce leave records as required under Section 74 of the Employment Act, 2007, the Court will adopt the employee's evidence on leave taken
  • Where parties give conflicting figures on salary, the Court may adopt the applicable minimum wage under the Regulation of Wages (General) (Amendment) Order, with house allowance loaded at 15%
  • Under Section 31(1) of the Employment Act, where an employee was not housed and was paid only basic salary, house allowance is payable

Court orders

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  1. 1.Award of house allowance of Kshs. 93,798 (15/100 x 11,580 x 54 months)
  2. 2.Award of service pay of Kshs. 26,634 (13,317 x 15 days x 4 years)
  3. 3.Award of unpaid leave of Kshs. 32,627 (13,317 x 21 days x 3 years + 1.75 days x 6 months)
  4. 4.Total award of Kshs. 153,059, with any money owed to the Respondent by the Claimant to be deducted from the Award
  5. 5.Respondent to meet the costs of the case

Authorities

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Legislation

  • Employment Act, 2007Section 74
  • Employment Act, 2007Section 31(1)
  • Regulation of Wages (General) (Amendment) Order, 2012Minimum wage for driver (cars and light vans)
Jurisdiction invoked
Industrial Court jurisdiction over employment and labour relations disputes (Cause No 2187 of 2012)

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, "Boniface Oduor v Josper Limited [2013] KEELRC 677 (KLR)", Case Analysis (2013). Cause No 2187 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/677/eng@2013-07-31

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