Hamisi Bakari v Hotel Sapphire Limited [2015] KEELRC 1339 (KLR)
The bottom line
#A Mombasa court ruled Hotel Sapphire must pay a former cleaner Kshs.78,159 in accrued leave and service pay for shortchanging him on exit.
What this practically means
#Executive summary
#Key legal issues
#Accrued annual leave entitlement upon resignation
The Claimant was entitled to 160 days of accrued annual leave pay notwithstanding his voluntary resignation while on leave; the Respondent's downward revision and partial deposit to the Labour Office did not satisfy the entitlement
The Court, guided by its determination in Misunga, found the Claimant had 160 accrued leave days as advised by the Respondent. Although the leave schedule showed 30 days to be taken, and the Claimant resigned while on leave leading the employer to revise the balance down, the deposit of Kshs.21,601 to the Labour Office did not satisfy the outstanding entitlement, so leave pay was computed at Kshs.379.40 per day for 160 days.
Service pay
The Claimant was granted service pay for two years, from 1st February 2006 to 1st February 2008, computed at 15 days' salary per year
Applying the approach in the related Misunga claim, service pay was calculated at Kshs.9,865÷26 working days = Kshs.379.40 x 15 days = Kshs.5,691.34 per year, for a period of 2 years, totaling Kshs.11,382.
Unfair labour practice and constitutional violation
The Respondent's treatment of the Claimant amounted to unfair labour practice and violated Article 41 of the Constitution of Kenya
Adopting the reasoning in Cause No. 9 of 2013 (Misunga), the Court declared that the Respondent's treatment of the Claimant amounted to unfair labour practice and infringed the constitutional right to fair labour relations under Article 41.
Legal principles established
#- A deposit to the Labour Office that does not satisfy an employee's outstanding annual leave entitlement does not discharge the employer's obligation
- An employer must release a Certificate of Service as required under Section 51 of the Employment Act 2007
Court orders
#- 1.It is declared the Respondent's treatment of the Claimant amounted to unfair labour practice, and was in violation of Article 41 of the Constitution of Kenya
- 2.The Respondent shall pay to the Claimant annual leave pay at Kshs.60,707.70; service pay at Kshs.11,382; 16 days' salary and house allowance at Kshs.6,070 – total Kshs.78,159.70
- 3.The Respondent shall release to the Claimant his Certificate of Service forthwith
- 4.The monetary award be satisfied within 21 days of the delivery of this Award
- 5.Parties to meet their own costs, and no order on interest
- Jurisdiction invoked
- Industrial Court jurisdiction over disputes of employment and labour relations, award made under Rule 27(1)(a) of the Industrial Court (Procedure) Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hamisi Bakari v Hotel Sapphire Limited [2015] KEELRC 1339 (KLR)", Case Analysis (2015). Cause Number 10 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1339/eng@2015-03-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.