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ELRCAllowedStatement of Claim dated 25th April 2014· [2014] KEELRC 151 (KLR)

Ayanna Yonemura v Liwa Kenya Trust [2014] KEELRC 151 (KLR)

Employment and Labour Relations Court
18 July 2014
918 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer that fails to keep proof of salary payment and uses 'gross' instead of 'consolidated' pay lost a Kshs 246,500 employment claim.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent under a three-month contract as Executive Director effective 1st November 2013 to 31st January 2014, sued for unpaid salary for January 2014 of Kshs.170,000/=, house allowance for three months at 15% of gross salary amounting to Kshs.76,500/=, a certificate of service, and costs. The Respondent filed a memorandum of reply admitting the employment but denying diligence and averring it did not owe the January salary. The Respondent was served with a hearing notice on 20th June 2014 but defaulted at the hearing on 25th June 2014, and the matter proceeded exparte. The Claimant testified in support of her claim. The Court found the Respondent's reply amounted to a bare denial, as no documentary evidence of payment of the January 2014 salary was produced, and held that the Claimant had proved her claim on a balance of probability. On house allowance, the Court examined section 31 of the Employment Act and held that exclusion of housing requires the contract to expressly provide a consolidated salary; 'gross' is not the same as 'consolidated', and clause 1 of the contract provided only a gross salary inclusive of a car allowance, with no express housing provision. The Court accordingly awarded the Claimant Kshs.170,000/= unpaid salary and Kshs.76,500/= house allowance at 15% of monthly salary, totalling Kshs.246,500/=, with interest at court rates from the date of judgment, costs of the suit, and ordered the Respondent to issue a certificate of service within 14 days. Judgment was delivered at Nairobi on 18th July 2014 by Mathews N. Nduma, Principal Judge.

Key legal issues

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01

Whether salary for January 2014 was due

Holding

The Claimant proved on a balance of probability that she was not paid her last salary of Kshs.170,000/= for January 2014; the Respondent's reply was a bare denial unsupported by documentary evidence of payment.

Reasoning

The Claimant testified in support of her claim and proved the three-month contract and non-payment of the final month's salary. The Respondent, though admitting the employment, denied owing January salary but produced no documentary evidence of payment, leaving its response a bare denial incapable of displacing the Claimant's proof on a balance of probability.

p. 2
02

Whether the Claimant was entitled to house allowance

Holding

The contract provided only a gross salary inclusive of a car allowance and did not expressly consolidate a housing element, so the Respondent did not provide housing or pay rent, and house allowance at 15% of basic wage was awarded per the General Wages Order.

Reasoning

Section 31(1) of the Employment Act obliges an employer to pay a sufficient sum as rent in lieu of housing unless under section 31(2) the contract consolidates a housing element into the salary. Clause 1 of the contract provided only a gross salary inclusive of a car allowance, with no express housing provision, so the statutory exclusion did not apply and the 15% component was awardable.

p. 3

Legal principles established

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  • For an employer to exclude provision of housing or payment of rent to an employee, the contract of service must specifically provide that the salary paid is a consolidated salary; 'gross' is not the same as 'consolidated'.

Court orders

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  1. 1.Kshs.170,000/= being unpaid salary for the month of January 2014
  2. 2.Kshs.76,500/= being housing allowance calculated at 15% of the monthly salary, total award Kshs.246,500/=
  3. 3.Interest on the salary and housing allowance at Court rates from date of Judgment to payment in full
  4. 4.Respondent to pay costs of the suit
  5. 5.Respondent to provide the Claimant with a certificate of service within 14 days from the date of the Judgment

Authorities

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Legislation

  • Employment ActSection 31(1) and 31(2)
  • General Wages Order15% housing component of basic wage
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes

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, "Ayanna Yonemura v Liwa Kenya Trust [2014] KEELRC 151 (KLR)", Case Analysis (2014). Statement of Claim dated 25th April 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/151/eng@2014-07-18

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