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ELRCPartially AllowedCause Number 767 of 2012· [2014] KEELRC 680 (KLR)

Francis Njuguna Waime v Translogistics [K] Limited [2014] KEELRC 680 (KLR)

Industrial Court at Nairobi
17 January 2014
RIRika
1,618 words in judgment
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The bottom line

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A Kenyan court ruled an employer must keep employment records and pay a truck driver Kshs. 128,000 in unpaid salary, but awarded no compensation because both sides ended the job.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a Truck Driver from March 2008 to October 2011 under an oral contract, claimed unpaid salary for July to October 2011 (Kshs. 128,000), annual leave pay (Kshs. 128,000), an order compelling remittance of N.S.S.F and N.H.I.F deductions, and compensation for implied termination. He alleged he was constructively frustrated out of employment after being sent to Nairobi to collect a truck that was not ready, not being paid from July 2011, and having his vehicle reassigned. The Respondent contended the Claimant refused an assignment to drive a truck to Mombasa and absconded, that his last salary was Kshs. 22,300 (not Kshs. 32,000), and that statutory deductions were faithfully remitted. The Respondent called no testimonial evidence. The Court found no persuasive evidence of termination by the Respondent, holding that the employment relationship became icy, with both parties contributing to its end; the Respondent stopped paying salary and reassigned the truck, while the Claimant did not submit himself to the Nairobi office's direction. The Court accepted the Claimant's last salary as Kshs. 32,000, noting the employer's statutory duty to keep records. The prayer on statutory deductions was rejected as made in an evidential vacuum. The Court awarded salary arrears of Kshs. 128,000 and made no order on costs and interest. Leave pay and termination compensation were not awarded.

Key legal issues

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01

Who bears responsibility for the termination of the employment contract

Holding

Both parties shared responsibility; neither is entitled to damages or notice pay

Reasoning

The employment relationship deteriorated after the relocation to Uganda and the Claimant's return to Nairobi. The employee did not submit himself to the direction of the Nairobi office while the Director was not keen on paying monthly dues or retaining the Claimant. The Respondent stopped paying salary and reassigned the Claimant's truck to another driver, ending the relationship. Both parties therefore contributed to the termination and no damages or notice pay falls due either way.

p. 3
02

Burden of proving the salary rate and statutory remittances

Holding

The employer bears the duty of keeping employment records; a claim for unremitted statutory deductions fails where unsupported by evidence

Reasoning

The Respondent alleged a lower last salary but offered no payment records, while the Claimant's claimed rate of Kshs. 32,000 was accepted. Conversely, the Claimant's prayer on N.S.S.F, N.H.I.F and PAYE remittances was unsupported by any records from the statutory bodies and no specific amounts were mentioned, so it was rejected as made in an evidential vacuum.

p. 3

Legal principles established

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  • The duty of keeping employment records rests on the employer under the Employment Act, and an employer cannot demand that an employee produce records to prove his salary rate

Court orders

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  1. 1.The Respondent shall pay to the Claimant his salary for July, August, September and October 2011, at the rate of Kshs. 32,000, total Kshs.128,000
  2. 2.No order on the costs and interest

Authorities

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Legislation

  • Employment Actduty of keeping records on the employer
Jurisdiction invoked
Jurisdiction over the employment dispute as the Industrial Court seized of the issue in dispute: unfair and unlawful termination

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, "Francis Njuguna Waime v Translogistics [K] Limited [2014] KEELRC 680 (KLR)", Case Analysis (2014). Cause Number 767 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/680/eng@2014-01-17

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