Caleb Achando Aduda v Bog Usenge High School [2015] KEELRC 960 (KLR)
The bottom line
#A Kenyan court awarded a retired school bursar unpaid leave allowance of Kshs 16,000 but rejected his broader pension-based salary claim under the Pensions Act.
What this practically means
#Executive summary
#Key legal issues
#Entitlement to leave allowance of Kshs 4,000/= per year for 2009 to 2012
The claimant is entitled to leave allowance of Kshs 4,000/= per year for 2009 to 2012 per the uncontested KUDHEIHA Workers circular; total Kshs 16,000/=.
The court distinguished pay in lieu of leave (paid for 2005-2008) from annual leave allowance introduced in 2009 when Government took over payment of non-teaching staff salaries. The respondent did not contest the KUDHEIHA circular and its witness made no reference to leave allowance, so the claimant's evidence stood uncontroverted.
Entitlement to salary up to 6th January 2014 under Section 16A of the Pensions Act
Rejected - the claimant was not covered by the Pensions Act and was not entitled to a pension thereunder.
Section 16A benefits only persons to whom a pension or allowance is payable under the Act. The claimant's pegging of his claim on the fact that his salary was the same as public servants did not bring him within the Act; he was not shown to be entitled to a pension under it.
Whether the service gratuity paid to the claimant was erroneously paid given NSSF membership
The service gratuity was rightfully due as it was provided for under the claimant's terms of employment and recognised under Section 35(5) and (6).
The court noted that Section 35(5) and (6) recognise gratuity and that an employee covered under a gratuity scheme is not entitled to service pay. The claimant did not claim service pay; he claimed and was paid service gratuity per his terms of employment, so the payment was proper.
Legal principles established
#- Section 16A of the Pensions Act applies only to a person to whom a pension or other allowance is payable under that Act, entitling such person to be retained in service until payment in full of gratuity.
- An employee covered under a gratuity scheme is not entitled to service pay, and service gratuity duly provided for in the terms of employment is rightfully payable.
Court orders
#- 1.Judgment entered for the claimant against the respondent in the sum of Kshs 16,000/= being leave allowance for 2009 to 2012
- 2.The respondent to pay the claimant's costs of the suit based on the amount prayed for in the claim
- Jurisdiction invoked
- Employment and labour relations claim under the Employment and Labour Relations Court's jurisdiction; claim pegged on Section 16A of the Pensions Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Caleb Achando Aduda v Bog Usenge High School [2015] KEELRC 960 (KLR)", Case Analysis (2015). Memorandum of Claim dated 10th December 2013, filed 11th December 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/960/eng@2015-06-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.