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ELRCPartially AllowedMemorandum of Claim dated 10th December 2013, filed 11th December 2013· [2015] KEELRC 960 (KLR)

Caleb Achando Aduda v Bog Usenge High School [2015] KEELRC 960 (KLR)

Employment and Labour Relations Court
10 June 2015
1,189 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The claimant, employed by the respondent Board of Governors of Usenge High School as school bursar from 1st August 2000, gave notice of retirement on 7th May 2012 and retired effective 28th February 2013 after terminal leave. By a letter of 28th September 2012 the respondent accepted the notice and undertook to pay service gratuity at one month's salary per year worked and acknowledged five years of outstanding leave. Terminal dues not being paid, the claimant filed this claim on 11th December 2013 seeking 12 years' gratuity, four years' leave allowance (2009-2012) at Kshs 4,000 per year, a year's salary for 2013 under Section 16A of the Pensions Act, costs and interest. Part payment was made in January 2014 while the claim was pending, and at submissions stage the claimant pursued only the leave allowance and the Section 16A salary claim. The court found the claimant entitled to leave allowance of Kshs 4,000 per year for 2009 to 2012 as stated in an uncontested KUDHEIHA Workers circular, awarding Kshs 16,000. It rejected the Section 16A claim, holding the claimant was not covered by the Pensions Act and not entitled to a pension thereunder. It also held the service gratuity already paid was rightfully due under his terms of employment. Judgment was entered for the claimant for Kshs 16,000 with costs based on the amount prayed for in the claim, payment having been made only after filing.

Key legal issues

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01

Entitlement to leave allowance of Kshs 4,000/= per year for 2009 to 2012

Holding

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/=.

Reasoning

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.

p. 2
02

Entitlement to salary up to 6th January 2014 under Section 16A of the Pensions Act

Holding

Rejected - the claimant was not covered by the Pensions Act and was not entitled to a pension thereunder.

Reasoning

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.

p. 3
03

Whether the service gratuity paid to the claimant was erroneously paid given NSSF membership

Holding

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).

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.Judgment entered for the claimant against the respondent in the sum of Kshs 16,000/= being leave allowance for 2009 to 2012
  2. 2.The respondent to pay the claimant's costs of the suit based on the amount prayed for in the claim

Authorities

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Legislation

  • Pensions ActSection 16A
  • Pensions ActSection 35(5) and (6)
  • The Education (Board of Governors) (Non-Teaching Staff) RegulationsSection 4

Cases cited (1)

  • Gabriel Ngugi Ndumbu Vs Gaichanjiru Catholic Hospital
    [2013] eKLR
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

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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, "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.