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ELRCPartially AllowedNot stated in judgment (Memorandum of Claim filed in Nairobi on 16 February 2011)· [2014] KEELRC 879 (KLR)

Issa Bisi v Anarwali & Brothers Ltd [2014] KEELRC 879 (KLR)

Industrial Court of Kenya
21 March 2014
1,763 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court awarded a retiree only Kshs 48,000 in unpaid leave, ruling that gratuity and salary claims must be backed by contracts, statutes, or solid documents.

What this practically means

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Executive summary

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Issa Bisi, a former employee acting initially in person and later through Kituo cha Sheria, sued Anarwali & Brothers Ltd before the Industrial Court seeking salary arrears for April to June 2007 (Kshs 78,876/-), gratuity for 24 years (Kshs 606,880/-), one month's pay in lieu of notice, and accrued leave for 7 years. With the Claimant unable to attend court due to illness and blindness, the court ordered a County Labour Officer to examine the Respondent's records, and the parties agreed to determination on pleadings, the Labour Officer's report and written submissions under Rule 21 of the Industrial Court (Procedure) Rules, 2010. The court found the documentary evidence (appointment letter effective 1 September 1997, NSSF retirement notification of 1999, Certificate of Service of 11 January 1999 and undisputed payment of Kshs 35,000/- final dues in November 2004) disproved employment in 2007, and rejected the salary arrears claim. Gratuity failed for want of contractual or statutory foundation and because service was not continuous. Notice pay failed as the Claimant retired on reaching retirement age rather than being dismissed. The court awarded Kshs 48,000/- for accrued leave for 2001 to 2004 as computed by the County Labour Officer. The Respondent's limitation plea, first raised in submissions, was rejected on the authority of Achola v Hongo because it was not pleaded in the Response. Each party was ordered to bear its own costs.

Key legal issues

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01

Salary arrears April to June 2007

Holding

Claim rejected; documents showed the Claimant's employment had ended earlier, with final dues paid on 13 November 2004

Reasoning

The appointment letter, NSSF retirement notification of 1999, Certificate of Service of 11 January 1999 and undisputed payment of Kshs 35,000/- as final dues established that the Claimant was not in employment during 2007. The court found no documentary basis for the alleged April to June 2007 employment and salary arrears.

p. 2
02

Gratuity for 24 years

Holding

Claim rejected; gratuity was neither contractual nor statutory

Reasoning

The letter of appointment made no provision for gratuity. The Claimant cited no statute underpinning the claim, and the applicable repealed Employment Act Cap 226 and Regulation of Wages Act Cap 229 were inapplicable; no Regulation of Wages Order providing gratuity was suggested. Service was also not continuous given the intervening work with African Express Automobiles Ltd.

p. 2
03

One month pay in lieu of notice

Holding

Claim rejected

Reasoning

The material before the court showed the Claimant retired on reaching retirement age and applied for his provident funds with the NSSF; there was no unlawful or unjustified termination to attract notice pay.

p. 3
04

Accrued leave for 7 years

Holding

Awarded as found by the County Labour Officer: Kshs 48,000/- for 2001 to 2004

Reasoning

The County Labour Officer examined the Respondent's records and found Kshs 48,000/- owing as outstanding leave for 2001 to 2004. The Claimant's argument that leave should be computed on a salary of Kshs 25,000/- lacked a factual basis, so the court adopted the Labour Officer's figure.

p. 3
05

Limitation

Holding

Limitation plea not entertainable because it was not pleaded in the Response

Reasoning

The Respondent raised limitation for the first time in submissions. Following Achola v Hongo, a party that fails to plead limitation cannot rely on it without amending its pleading. The court also noted the repealed Employment Act Cap 226 had no limitation clause, so section 4(1) of the Limitation of Actions Act (6 years for contract) applied.

p. 3

Legal principles established

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  • A plea of limitation cannot be raised for the first time in written submissions where it was not pleaded in the defence
  • Payment of gratuity may rest on a contractual or statutory foundation; absent either, the claim fails

Court orders

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  1. 1.The Claimant's claim fails save for accrued leave
  2. 2.The Respondent to pay the Claimant Kshs 48,000/- as outstanding accrued leave
  3. 3.Each party to bear its own costs

Authorities

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Legislation

  • Industrial Court (Procedure) Rules, 2010Rule 21
  • Employment Act Cap 226 (repealed)not specified (no limitation clause noted)
  • Regulation of Wages and Conditions of Employment Act Cap 229 (repealed)not specified
  • Regulation of Wages (Road Transport) Ordernot specified (does not provide for gratuity)
  • Trade Disputes Act (repealed)section 4(4)
  • Limitation of Actions Actsection 4(1)

Cases cited (1)

  • Achola & another v Hongo & another
    (2004) 1 KLR 462
Jurisdiction invoked
Industrial Court jurisdiction over employment disputes (Industrial Court (Procedure) Rules, 2010, Rule 21 applied); original first-instance claim

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, "Issa Bisi v Anarwali & Brothers Ltd [2014] KEELRC 879 (KLR)", Case Analysis (2014). Not stated in judgment (Memorandum of Claim filed in Nairobi on 16 February 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/879/eng@2014-03-21

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