Gordon Godfrey Baraza v Pedesa Stationery Services Limited [2015] KEELRC 1166 (KLR)

The Respondent admitted paying the Claimant a monthly salary from 2005 to February 2013, initially said to enable him join NHIF. Payment of monthly salary, plus NHIF and NSSF records, introduction letters and salary increment requests demonstrated an employment relationship. The Respondent's own admissions placed the Claimant as a protected employee under the Employment Act. Issue (i) was therefore answered in the affirmative.

Having found the Claimant was a permanent employee treated like a freelance agent for the entire period and never granted leave days, the Court held the statutory leave entitlement could not be extinguished. The Claimant demonstrated the claim, supported by a letter from 12 employees dated 8th April 2011 which went unanswered.

The Claimant had documentary proof of unpaid commissions of Kshs.97,500.00 which the Respondent merely denied generally without refuting the specifics. Wrongful deductions of Kshs.7,129.00 were demonstrated. The Respondent did not contribute to NSSF during the entire employment, entitling the Claimant to service gratuity under Section 35 as read with Section 36 of the Employment Act, 2007, calculated at fifteen days salary per year of service.

The Claimant gave no particulars of underpayment beyond general allegations, led no evidence of specific Saturdays on which he exceeded the applicable Saturday cut-off of 1 p.m. for overtime, and gave no evidence on the basis for housing allowances. These heads of claim therefore failed for want of sufficient proof.