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ELRCPartially AllowedIndustrial Cause (Memorandum of Claim filed 3 August 2009)· [2013] KEELRC 789 (KLR)

Richard Ouma v Kenbox Industries Limited [2013] KEELRC 789 (KLR)

Industrial Court of Kenya (now Employment and Labour Relations Court)
27 September 2013
1,215 words in judgment
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The bottom line

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A Kenyan employment court ruled that an employee who resigns gets no severance pay, only accrued leave, and must prove claims like house allowance with evidence.

What this practically means

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Executive summary

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The Claimant, employed by Kenbox Industries Ltd as a home attendant, claimed terminal benefits of Kshs 290,900/- comprising unpaid July 2009 salary, severance pay, unpaid leave, one-way travelling allowance and unpaid house allowance, contending in submissions that his termination was wrongful. The Respondent denied liability, asserting the Claimant absconded duty from 26 June 2009, that his salary of Kshs 10,000/- was consolidated, and that leave had been paid up to December 2008. After a chequered procedural history - including the exit of the former Industrial Court judges in 2012 before the award could be delivered and multiple directions mentions at which the parties did not appear - Radido J proceeded to determine the Cause on the record under Rules 21 and 22 of the Industrial Court (Procedure) Rules, 2010, the Respondent having been served but absent. The Court held that the Claimant resigned, as he had pleaded, and that wrongful termination did not arise. It declined salary for July 2009, severance pay (payable only on redundancy), the travelling allowance (no contractual or statutory basis) and house allowance (no sufficient material, salary being consolidated). It awarded only Kshs 3,461/- as pro rata leave for 9 days accrued between January and July 2009, computed at one twenty-sixth of the monthly salary per day. There was no order as to costs, and the file was to be transmitted to Nairobi after delivery of the judgment.

Key legal issues

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01

Wrongful termination

Holding

The Claimant resigned and was not wrongfully terminated

Reasoning

The Claimant pleaded resignation in the Memorandum of Claim and the Respondent's reply to the demand letter also stated he resigned. In submissions he contradicted his pleadings by asserting wrongful termination, but the Court held the pleaded position and the Respondent's written reply governed, so the issue of wrongful termination did not arise.

p. 2
02

Severance pay

Holding

Not payable to a resigning employee

Reasoning

Severance is a redundancy benefit. Since the Claimant resigned and was never declared redundant, the head of claim fails as a matter of law.

p. 2
03

Pro rata leave

Holding

Awarded Kshs 3,461/- for 9 days accrued leave

Reasoning

Vouchers showed leave was paid up to December 2008, but the Claimant worked until about 2 July 2009, accruing 9 days. Using the formula of monthly salary divided by 26 to get the daily rate, multiplied by 9 days, the Court assessed Kshs 3,461/-.

p. 3
04

House allowance

Holding

Claim declined

Reasoning

Section 31 of the Employment Act requires housing or an allowance in lieu, subject to exceptions in section 31(2). The Respondent pleaded a consolidated net salary of Kshs 10,000/- and the Claimant adduced no sufficient material to displace that position, so the claim failed.

p. 3
05

Determination on the record without full hearing

Holding

Cause determined under Rules 21 and 22 of the Industrial Court (Procedure) Rules, 2010

Reasoning

The Respondent was served but did not appear; parties, through the Claimant's counsel holding brief, signalled agreement to judgment on the record. Rule 21 permits determination on pleadings, affidavits, documents and submissions, and Rule 22 permits proceeding in the absence of a party.

p. 2

Legal principles established

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  • Severance pay is payable only on termination through redundancy, not on resignation
  • Where an employer pays a consolidated salary, a claim for house allowance requires sufficient material to succeed
  • The Court may, subject to parties' agreement, determine a suit on the basis of pleadings, affidavits, documents and submissions (Rule 21), and may proceed in the absence of any party (Rule 22)

Court orders

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  1. 1.Judgment that the Claimant resigned and was not wrongfully terminated
  2. 2.Award of Kshs 3,461/- being 9 days pro rata leave for the period January to July 2009
  3. 3.Decline of all other heads of claim
  4. 4.No order as to costs
  5. 5.Deputy Registrar to transmit the file to the Deputy Registrar, Industrial Court Nairobi after delivery of the judgment

Authorities

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Legislation

  • Employment ActSection 31, section 31(2)
  • Industrial Court (Procedure) Rules, 2010Rule 21, Rule 22
Jurisdiction invoked
Industrial Court (Procedure) Rules, 2010 (Rules 21 and 22); the Cause was pending before the former Industrial Court and reassigned to the Judge

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, "Richard Ouma v Kenbox Industries Limited [2013] KEELRC 789 (KLR)", Case Analysis (2013). Industrial Cause (Memorandum of Claim filed 3 August 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/789/eng@2013-09-27

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