Boniface Muthui Muthei v Rooftech K Limited [2014] KEELRC 1219 (KLR)
The bottom line
#A Kenyan court ruled that employees contributing to NSSF are not entitled to service pay under the Employment Act, though admitted salary arrears must still be paid.
What this practically means
#Executive summary
#Key legal issues
#Entitlement to service benefits
The claim for service benefits of Kshs. 2,017,440 was dismissed because the Claimant, being an NSSF member, fell outside Section 35(5) of the Employment Act, 2007 by operation of Section 35(6)
The Claimant claimed service benefits of Kshs. 2,017,440 without reference to any specific provision in his terms and conditions of employment. The Court therefore construed the claim as one brought under Section 35(5) of the Employment Act, 2007. However, it was common cause that the Claimant was an NSSF member, and Section 35(6) expressly excludes such employees from entitlement to service pay. The claim accordingly had no basis in law and was dismissed.
Remittance of NSSF and NHIF statutory contributions
The Court could not determine on the evidence whether remittances were made; it directed the Respondent to obtain and file updated statements from the statutory bodies within 30 days and to pay the admitted sum of Kshs. 22,243
The Claimant alleged non-remittance of NSSF and NHIF contributions while the Respondent contended that all contributions were duly made. The Court noted that statutory contributions are evidenced by statements issued by the respective statutory bodies, and rather than make a final finding on the conflicting accounts, directed the Respondent to obtain and lodge updated statements of account within thirty days, and to pay the admitted amount of Kshs. 22,243 within the same period.
Legal principles established
#- An employee who is a member of NSSF is excluded from the service pay entitlement under Section 35(5) of the Employment Act by virtue of Section 35(6)
- Statutory contributions to NSSF and NHIF are evidenced by statements issued by those bodies
Court orders
#- 1.The claim for service benefits of Kshs. 2,017,440 under Section 35(5) of the Employment Act, 2007 is dismissed
- 2.The Respondent to obtain and remit to the Court updated statements of all NSSF and NHIF contributions made on behalf of the Claimant within thirty (30) days from the date of the ruling
- 3.The Respondent to pay the admitted amount of Kshs. 22,243 to the Claimant within thirty (30) days
- 4.Each party to bear their own costs
- Jurisdiction invoked
- Industrial Court of Kenya jurisdiction under the Industrial Court Act over employment and labour relations disputes
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Boniface Muthui Muthei v Rooftech K Limited [2014] KEELRC 1219 (KLR)", Case Analysis (2014). Cause No 134 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1219/eng@2014-07-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.