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ELRCPartially AllowedCause Number 429 of 2014· [2015] KEELRC 1288 (KLR)

Said Ali Nyoka v Factory Guards [Mombasa] Limited [2015] KEELRC 1288 (KLR)

Industrial Court of Kenya
20 March 2015
JRJames Rika
1,026 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This was an undefended employment claim in the Industrial Court at Mombasa, Cause Number 429 of 2014, in which Said Ali Nyoka sued Factory Guards [Mombasa] Limited for terminal dues following his voluntary resignation. The Respondent filed no appearance or statement of response despite proper service, and the claim proceeded ex parte before Rika J. The Claimant, a security guard employed from 1st January 2010 until his resignation, claimed Kshs. 616,406.40 comprising leave pay, house rent allowance arrears, normal and public holiday overtime, and severance pay, plus damages, costs and interest. He withdrew the damages claim at the hearing. The court rejected the house allowance claim because his pay slips consistently showed a house allowance item; it rejected the overtime claims because the pay slips showed 'Normal OT and P/H OT' payments, making his denial of overtime obviously untrue; and it refused severance pay as none was due on voluntary resignation, with service pay equally barred by his N.S.S.F subscription under Section 35(6) of the Employment Act 2007. The court however found the Claimant had never utilised or been compensated for annual leave, and applying Clause 10 of the Regulation of Wages (Protective Security Services) Order awarded 96 days' annual leave pay (24 days per year over 4 years) computed at Kshs. 53,988.90. By orders of 20th March 2015 the Respondent was directed to pay that sum within 30 days, with costs to the Claimant and interest at 14% per annum from delivery of the Award until payment in full.

Key legal issues

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01

Annual leave pay for unutilised leave

Holding

The Claimant, having taken no annual leave and received no leave pay over 4 years, was awarded 96 days' annual leave pay computed at Kshs. 53,988.90

Reasoning

The Regulation of Wages (Protective Security Services) Order entitled the Claimant to 24 working days' annual leave with full pay after every 12 months of consecutive service. Over 4 years of service this yielded 96 days. The court computed the daily rate by dividing the monthly salary of Kshs. 14,622 by 26 working days to arrive at Kshs. 562 per day, multiplying by 96 days. Nothing showed the leave was taken or paid in lieu.

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02

Claims for house allowance and overtime contradicted by pay slips

Holding

Both claims failed because the Claimant's own pay slips showed house allowance and overtime payments were made

Reasoning

The court found the documentary evidence inconsistent with the Claimant's oral testimony. Pay slips listed an item named house allowance and showed 'Normal OT and P/H OT' payments. The Claimant failed to explain these entries to the court's satisfaction, and his assertion that he never received overtime pay was found obviously untrue. Claims contradicted by a party's own documents cannot stand.

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03

Severance and service pay on voluntary resignation

Holding

Neither severance nor service pay was available to an employee who resigned voluntarily

Reasoning

Severance pay under Section 40 of the Employment Act 2007 applies only in redundancy, and the Claimant left employment voluntarily. Service pay under Section 35 was also unavailable because the Claimant was actively subscribed to the N.S.S.F, which excludes eligibility under Section 35(6). The mislabelled severance claim could not be converted into a service pay claim.

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Legal principles established

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  • Severance pay is payable only in redundancy situations under Section 40 of the Employment Act 2007
  • Employees subscribed to the N.S.S.F are not eligible for service pay under Section 35(6) of the Employment Act
  • Leave pay is the monetary value of unutilised annual leave days, distinct from leave allowance which is a travelling allowance

Court orders

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  1. 1.The Respondent shall, within 30 days of the delivery of the Award, pay the Claimant Kshs. 53,988.90 in annual leave pay
  2. 2.Costs to the Claimant
  3. 3.The Award to attract interest at 14% per annum from the date of its delivery until payment in full

Authorities

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Legislation

  • Employment ActSection 40
  • Employment ActSection 35
  • Employment ActSection 35(6)
  • Industrial Court Procedure RulesRule 27(1)(a)
  • Regulation of Wages [Protective Security Services] OrderClause 10
Jurisdiction invoked
Industrial Court jurisdiction under the Industrial Court Act; award delivered under Rule 27(1)(a) of the Industrial Court Procedure Rules 2010 in an undefended claim

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, "Said Ali Nyoka v Factory Guards [Mombasa] Limited [2015] KEELRC 1288 (KLR)", Case Analysis (2015). Cause Number 429 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1288/eng@2015-03-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.