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ELRCOtherNot stated in the judgment provided· [2014] KEELRC 1146 (KLR)

David Mutevu & 103 others v Africa Nazarene University [2014] KEELRC 1146 (KLR)

Employment and Labour Relations Court
17 April 2014
MMM. Mbaru
854 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nairobi, delivered by M. Mbaru J on 17th April 2014, resolves a dispute arising from the court's judgment of 13th February 2014, in which the claimants were found to have been unfairly declared redundant and each awarded three months' salary as compensation under section 49 of the Employment Act. The respondent filed a Notice of Motion on 10th March 2014 seeking, among other things, stay of execution pending appeal, arguing that the judgment contained no ascertainable amount. Most issues were settled between the parties except the computation of the judgment sum. The respondent, through Mr. Gachuhi, submitted that only basic salary less statutory dues was payable since no gross salary figures were in evidence, and relied on Kenya Ports Authority v Silas Obengele, Civil Appeal No. 38 of 2005, to argue that allowances do not survive termination. The claimants, through Mr. Nyabena, countered that gross salary was awarded, that the respondent as custodian of employee records could compute it, and that the Obengele decision predated the Employment Act, 2007. The court held that the award was based on the last salary earned, being the gross amount, as required by section 49(1)(c), subject to statutory deductions under section 49(2). The respondent was directed to compute the award within seven days, failing which the claimants could access the respondent's records under section 74(2), with any resulting costs borne by the respondent. Mention was set for 28th April 2014 to confirm compliance.

Key legal issues

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01

Whether the award of three months' salary is computed on gross or basic pay

Holding

The award is based on the gross salary last earned by the claimants at termination

Reasoning

The court found that the judgment of 13th February 2014 awarded three months' salary based on the last salary earned. Section 49(1)(c) of the Employment Act expressly provides that compensation is based on the gross monthly wage or salary at the time of dismissal. The last salary therefore includes allowances and other amounts making up gross pay, and the respondent, as custodian of employee records, could compute it.

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02

Whether the award is subject to statutory deductions

Holding

Yes, statutory dues must be deducted from the gross award under section 49(2) of the Employment Act

Reasoning

Section 49(2) provides that payments made under the section are subject to statutory deductions. The court held the gross sum is payable and depositable subject to the deductions required by law of any employer before payment of salary to an employee. This accommodated the respondent's statutory compliance concerns while confirming gross computation.

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Legal principles established

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  • Compensation under section 49(1)(c) of the Employment Act is based on the gross monthly wage or salary of the employee at the time of dismissal
  • Payments under section 49 are subject to statutory deductions
  • Employers are mandatorily required to keep employee records under section 74 of the Employment Act, and employees may access them where the employer fails to compute dues

Court orders

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  1. 1.Respondents directed to compute the three months' pay due to the claimants based on the last salary earned by each claimant, being the gross pay less all statutory dues, within seven days
  2. 2.In default of computation, the claimants may access the respondent's records under section 74(2) of the Employment Act within 24 hours' notice on any working day from 0800 to 1600 hours
  3. 3.Any subsequent costs incurred in accessing the records to be paid by the respondent
  4. 4.Mention on 28th April 2014 to confirm compliance
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (section 49)

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, "David Mutevu & 103 others v Africa Nazarene University [2014] KEELRC 1146 (KLR)", Case Analysis (2014). Not stated in the judgment provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1146/eng@2014-04-17

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