Nomwel Nyakundi Gekone v Riley Services Limited [2015] KEELRC 410 (KLR)
The bottom line
#A Kenyan court ruled that calling a salary 'consolidated' is not enough—employers must expressly state it covers house allowance, or pay it separately.
What this practically means
#Executive summary
#Key legal issues
#Entitlement to house allowance on a purportedly consolidated salary
The Claimant is entitled to house allowance at 15% of his monthly salary for 48 months as the contract did not expressly exclude it
The contract submitted stated the salary would be consolidated but left the amount payable blank. Under Section 31 of the Employment Act, exclusion of house allowance must be express. The vagueness of the contract meant the Respondent failed to prove consolidation, so the court computed 15% of the monthly salary for the 48 months served, awarding Kshs. 74,750.
Annual leave
The Respondent admitted the Claimant did not go on leave for 4 years; the court restricted the award to one month's salary for the last contract period
The Respondent conceded that the Claimant did not take leave for the four years of service. The court exercised restraint by confining the award to the last contract period, granting one month's salary of Kshs. 10,382 for the one month of leave due under the final contract.
Overtime
The Claimant worked 12-hour shifts entailing 3 hours overtime daily and is awarded overtime pay of Kshs. 186,876
There was no denial that the Claimant worked 12-hour shifts, meaning he served 3 hours of overtime daily beyond the ordinary 9-hour structure. The court computed overtime at 3 hours per day over 48 months using the monthly salary, arriving at Kshs. 186,876.
Gratuity
Gratuity is not payable because the Claimant was a member of NSSF
Section 35 of the Employment Act provides that service pay is not payable where an employee is a member of a statutory pension or provident fund such as NSSF. Since the Claimant was an NSSF member, his gratuity claim failed.
Legal principles established
#- Payment of house allowance is only excluded where the contract of service expressly provides that the salary covers it; a vague contract attracts an award of house allowance.
Court orders
#- 1.Respondent to pay the Claimant Kshs. 285,272/= as terminal dues
- 2.Respondent to issue the Claimant with a Certificate of Service
- 3.Respondent to pay costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act over employment disputes (Employment Act 2007 invoked)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nomwel Nyakundi Gekone v Riley Services Limited [2015] KEELRC 410 (KLR)", Case Analysis (2015). Cause No. 504 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/410/eng@2015-10-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.