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ELRCPartially AllowedCause No 808(N) of 2009· [2014] KEELRC 835 (KLR)

Anne Waithera Kimani v Stephen Ndungu Njenga [2014] KEELRC 835 (KLR)

Industrial Court of Kenya
5 March 2014
LNLinnet Ndolo
761 words in judgment
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The bottom line

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A Kenyan employee won Kshs. 476,850 in house allowance, but lost other benefit claims because she couldn't prove them and cited the wrong law.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a copy typist from 1st June 1987, resigned by notice on 6th December 2003 effective 6th January 2004 and repeatedly demanded terminal benefits, quantifying her claim in June 2004 and issuing a final reminder in July 2008. She claimed service pay, leave pay, house allowance at 15% and overtime compensation for public holidays worked over 16 years. The Respondent admitted the employment, the resignation and the final salary of Kshs. 17,000, but denied any benefits were due. At the interlocutory stage the Court had upheld a preliminary objection based on Section 90 of the Employment Act, 2007, holding that the cause of action arose before that Act came into force, so the repealed Employment Act (Cap 226) governed. The Court criticised the Claimant's counsel for nevertheless anchoring submissions on the 2007 Act, and applied Nduma J's decision in Jeremiah Ojwang Ojak v Central Bank of Kenya on non-retrospectivity. Under Cap 226 only the house allowance claim was sustainable and was allowed; service pay, leave pay and overtime failed for want of proof. The Court awarded Kshs. 476,850 as house allowance for the entire 187 months of employment and ordered each party to bear their own costs. Judgment was delivered in open court at Nairobi on 5th March 2014 by Linnet Ndolo Judge.

Key legal issues

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01

Applicable statute governing the employment relationship

Holding

The repealed Employment Act (Cap 226), not the Employment Act, 2007, applied since the cause of action arose before 2007; only the house allowance claim could be sustained under Cap 226.

Reasoning

The Court had already held at the interlocutory stage, on a preliminary objection under Section 90 of the Employment Act, 2007, that the Act of 2007 was not in force when the cause of action arose. Counsel for the Claimant nonetheless based submissions on the new law. Following Jeremiah Ojwang Ojak v Central Bank of Kenya, the 2007 Act has no retrospective effect, so only the house allowance claim survived under Cap 226.

p. 2
02

Proof of service pay, leave pay and overtime claims

Holding

Those claims failed for want of proof.

Reasoning

Apart from the house allowance claim sustained under Cap 226, the Claimant did not prove service pay, leave pay or overtime. Her Memorandum of Claim did not tabulate the claim and the Court found no evidence supporting the other heads, dismissing them for want of proof.

p. 2

Legal principles established

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  • The Employment Act, 2007 has no retrospective application to employment contracts terminated before its operationalisation; the repealed Employment Act (Cap 226) governs such causes.

Court orders

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  1. 1.Award of Kshs. 476,850 in favour of the Claimant being house allowance for 187 months
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Employment ActSection 90
  • Employment Act, 2007
  • Employment Act (Repealed)

Cases cited (1)

  • Jeremiah Ojwang Ojak Vs Central Bank of Kenya
    [2012]eKLR
Jurisdiction invoked
Industrial Court of Kenya jurisdiction over employment disputes (the judgment does not cite a specific constitutional or statutory provision)

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, "Anne Waithera Kimani v Stephen Ndungu Njenga [2014] KEELRC 835 (KLR)", Case Analysis (2014). Cause No 808(N) of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/835/eng@2014-03-05

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