Justus Katana Charo v Ready Consultancy Company Limited [2015] KEELRC 1306 (KLR)
The bottom line
#Even when an employee quits on their own, Kenyan employers must still pay accrued annual leave and service pay if they cannot prove otherwise.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent terminated the Claimant's employment
The Respondent did not terminate the contract; the Claimant left employment on his own volition
The Court credited the evidence of the HR Manager, Ms Endekwa, that the Claimant continued working after filing his injury claim, was photographed by insurance officers in the ordinary processing of the claim, and that the Respondent facilitated his treatment with sick-off days and continued pay. No act of termination was attributed to the employer; the Claimant never presented himself back at the workplace and was not locked out.
Entitlement to annual leave pay
The Claimant, a regular employee, was entitled to annual leave pay at a minimum of 21 working days per year; awarded Kshs. 49,455 for 5 years
As a regular employee the Claimant was entitled to a minimum of 21 working days' annual leave with full pay. The Respondent produced no evidence that the leave was utilized in full or in bits, only a bare assertion in submissions. The Court computed 5 years x 21 days = 105 days at the daily rate of Kshs. 471.
Entitlement to service pay
Service pay awarded at 15 days' salary per completed year of service under Section 35 of the Employment Act, totalling Kshs. 35,325
The Respondent adduced no evidence of any social security plan at the workplace or subscription of the Claimant to the N.S.S.F. Absent such evidence, the statutory entitlement to service pay under Section 35 arose, computed at a minimum of 15 days' salary for each of the 5 complete years of service.
Legal principles established
#- An employee cannot be denied terminal benefits regardless of the manner of termination
- Where an employer claims an employee utilized annual leave, the burden lies on the employer to supply evidence of leave taken
- Service pay accrues under Section 35 of the Employment Act where there is no evidence the employee was subscribed to a social security scheme
Court orders
#- 1.The Respondent shall pay to the Claimant annual leave pay of Kshs. 49,455 and service pay of Kshs. 35,325, total Kshs. 84,780, to be paid within 30 days of delivery of the Award
- 2.No order on costs and interest
- Jurisdiction invoked
- Industrial Court [Procedure] Rules 2010, Rule 27[1][a]; disputes under the Employment Act 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Justus Katana Charo v Ready Consultancy Company Limited [2015] KEELRC 1306 (KLR)", Case Analysis (2015). Cause Number 233 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1306/eng@2015-03-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.