Eddie Mutegi Njora v Mega Microfinance Co. Ltd [2015] KEELRC 238 (KLR)

Section 9 of the Employment Act obliges the employer to issue a written contract signifying the employee's consent. The contract produced was not signed by the Claimant, breaching section 9(3). However, the Claimant by his conduct knew his salary, duties and dual role with MIWS, which were only ascertainable from the appointment letter of 26 July 2008. He received the letter on 22 February 2011, five months before the fixed-term contract lapsed, contested nothing, and served until 31 July 2011. No rights violation arose.

The employer directed the Claimant on 21 April and 30 May 2011 to proceed on accrued leave. Although he was permitted to continue serving MIWS from the same office, his employer for leave purposes was the Respondent, which had directed leave. Leave is a legal entitlement to rest that cannot be postponed indefinitely. The Respondent also paid cash for the 22 remaining leave days in computing terminal dues.

Section 35(6)(d) excludes employees who are members of the NSSF from service pay. Although the Claimant's own NSSF dues were not remitted, the duty to deduct and remit rests on the employer regardless of the employee's position. The Respondent later paid all dues and penalties with a waiver. As the court became aware of the remittance before judgment, awarding service pay would amount to a gross error and double payment.

Section 34 of the Employment Act obliges the employer to provide sufficient and proper medicine during illness and, where possible, medical attendance during serious illness. Where no cover exists, the employee must notify the employer of illness, who must then address it. The Claimant adduced no evidence of sickness, of notifying the Respondent, or of incurring medical bills that the Respondent failed to reimburse.

Personal tools may be used where the employer fails to provide them and the employee must use their own to perform their work. The Claimant, as Administrative Officer, did not demonstrate that he required a laptop and that the Respondent failed to provide one. The Respondent's policy prohibited personal computers given the nature of its financial business, and the claimed Kshs.21,000 was not justified.

The written contract set the gross salary and benefits; housing or an allowance in lieu was not among them. Courts will not read in rights outside the agreed contract save in exceptional circumstances, and the Claimant did not allege his pay fell below the statutory minimum for his position so as to justify implying a housing benefit.