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ELRCAllowedCause No. 1319 of 2012· [2013] KEELRC 751 (KLR)

Nokolai Hunja v Versus Kencall Epz Limited [2013] KEELRC 751 (KLR)

Industrial Court of Kenya
20 August 2013
1,003 words in judgment
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The bottom line

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Kenya's Industrial Court awarded a former Kencall employee Kshs.321,198 in unpaid salary and terminal dues after the company broke its written promise to pay.

What this practically means

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Executive summary

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The claimant, Nikolai Hunja, filed this claim on 3rd August 2012 seeking unpaid salary arrears and terminal dues from the respondent, Kencall EPZ Limited. He gave sworn evidence that he was employed by the respondent on two occasions, first rising from Sales Representative to Quality Manager, and second by a letter dated 17th December 2011 as Accounts Manager/Service Manager at Kshs.90,000 per month. On both occasions the respondent fell into financial difficulty and failed to pay his salary, prompting his resignation. The respondent's Chief Executive, Mr. Nicholas Nesbit, by letter dated 30th May 2012, admitted owing the claimant salary arrears of Kshs.137,207.00 and terminal dues of Kshs.183,931.00, totalling Kshs.321,198.00, and committed to paying the amount in five monthly instalments of Kshs.64,239 beginning June 2012. That commitment was never honoured. The respondent was served with summons, mention notices and hearing notices, acknowledged receipt, but filed no appearance or defence and never attended court. Relying on section 18(5)(a) of the Employment Act, the court held that every employee is entitled to payment of wages earned and allowances due upon termination, and that the respondent's written admission and dishonoured undertaking left the claim uncontroverted. Judgment was entered for the claimant for Kshs.321,198.00, with costs of the suit and interest at court rates from the date of filing until payment in full.

Key legal issues

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01

Entitlement to unpaid wages and terminal dues on termination

Holding

The claimant was entitled to payment of the admitted salary arrears and terminal dues of Kshs.321,198.00, the respondent having confirmed the debt in writing and dishonoured its undertaking to pay.

Reasoning

The court relied on section 18(5)(a) of the Employment Act, which places on the employer the duty to pay the entire amount of wages earned and allowances due upon termination. The claimant gave sworn, uncontroverted evidence of two periods of employment and non-payment. The respondent's letter of 30 May 2012 admitted a total of Kshs.321,198.00 and committed to payment in five monthly instalments from June 2012, which was never honoured despite service of process on the respondent.

p. 2
02

Effect of respondent's non-appearance and written admission

Holding

Judgment was entered for the claimant on the basis of the respondent's written admission, the claim being uncontroverted as the respondent filed no appearance or defence and never attended court despite service.

Reasoning

The respondent was served with summons, mention notices and hearing notices, acknowledged receipt, yet filed no appearance or defence and did not attend the hearing. In the absence of any rebuttal, the claimant's sworn evidence and the respondent's written admission in the letter of 30 May 2012 stood unchallenged, justifying entry of judgment in the terms claimed.

p. 2

Legal principles established

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  • Every employee is entitled to be paid his salary for work done, whatever the mode of termination; upon termination it is the employer's duty to ensure all wages and allowances due are paid.

Court orders

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  1. 1.An award of terminal dues amounting to kshs.321,198.00
  2. 2.Costs of the suit
  3. 3.Interest on the award and costs at court rates from the date of filing the claim until payment in full

Authorities

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Legislation

  • Employment Actsection 18, section 18(5)(a)
Jurisdiction invoked
Employment and labour relations dispute under the Employment Act (Industrial Court jurisdiction over employment claims)

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, "Nokolai Hunja v Versus Kencall Epz Limited [2013] KEELRC 751 (KLR)", Case Analysis (2013). Cause No. 1319 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/751/eng@2013-08-20

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