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ELRCDismissedNot stated in judgment· [2014] KEELRC 1465 (KLR)

Jafeth Angolo Matang v Surji Singh [2014] KEELRC 1465 (KLR)

Employment and Labour Relations Court
10 November 2014
HWHellen S. Wasilwa
695 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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The claimant, employed as a metal turner from January 1998 at a salary he pleaded as Kshs 8,000 rising to Kshs 9,000 per month, sued claiming unlawful dismissal. He averred that in 2010 he wrote seeking to retire on grounds of age, but the respondents refused, locked him out of work in December 2010, and never paid his retirement dues; he also claimed unpaid overtime, denial of leave, and underpayment of salary for 12 years. The respondents' two witnesses denied chasing him away, asserting he last worked on 13.9.2010 and absconded, though RW2 admitted knowing of the retirement request and that the claimant kept returning for his dues. The court framed two issues: whether the claimant retired, was dismissed or absconded, and whether he was entitled to remedies. On the first, the court found the claimant intended to and did retire, relying on his letter of 30.8.2010 and RW2's knowledge of it, holding abscondment did not arise. On remedies, the court held that as an NSSF contributor the claimant was barred by section 35(6) of the Employment Act 2007 from service pay and could collect dues from NSSF. His claim for underpayment failed for want of proof of actual earnings against wages orders. The court awarded no amounts, and ordered each party to bear its own costs. Judgment was delivered by Hellen S. Wasilwa, Judge, on 10 November 2014, with Ochuka appearing for the claimant and Owino for the respondents.

Key legal issues

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01

Whether the claimant retired, was dismissed, or absconded

Holding

The claimant intended to and did retire from duty; the assertion that he absconded does not arise

Reasoning

The claimant wrote a letter dated 30.8.2010 seeking to retire with effect from 15.9.2010 citing age. RW2 admitted awareness of the retirement request and that the claimant kept returning to ask for his dues. The evidence of RW1 and RW2 was contradictory on whether retirement was known, but the court accepted that the retirement letter existed and was known to the respondents, negating abscondment or dismissal.

p. 2
02

Whether the claimant was entitled to service pay and other terminal dues

Holding

No terminal dues were payable or proved; service pay is excluded because the claimant contributed to NSSF

Reasoning

Under section 35(6) of the Employment Act 2007, an NSSF contributor is not entitled to service pay, so the claimant may only collect his dues from NSSF. On the claim for underpayment of salary over 12 years, the claimant failed to prove his actual earnings against the applicable wages orders, and in the absence of evidence of entitlement, no amounts were awarded.

p. 2

Legal principles established

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  • An employee who is a member and contributor of NSSF is not entitled to service pay under section 35(6) of the Employment Act 2007.
  • A party claiming terminal dues must prove actual entitlement with evidence; unproved claims attract no award.

Court orders

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  1. 1.Finding that the claimant retired from duty and did not abscond or was not dismissed
  2. 2.Declaration that the claimant is not entitled to service pay by virtue of section 35(6) of the Employment Act 2007 and may collect his dues from NSSF
  3. 3.No amounts awarded as terminal dues
  4. 4.Each party to bear its own costs

Authorities

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Legislation

  • Employment Act 2007Section 35(6)
Jurisdiction invoked
Employment and labour relations dispute under the Employment Act 2007 (specific enabling provision not cited in the judgment)

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, "Jafeth Angolo Matang v Surji Singh [2014] KEELRC 1465 (KLR)", Case Analysis (2014). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1465/eng@2014-11-10

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