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ELRCPartially AllowedCause Number 10 of 2013· [2015] KEELRC 1339 (KLR)

Hamisi Bakari v Hotel Sapphire Limited [2015] KEELRC 1339 (KLR)

Industrial Court of Kenya
6 March 2015
553 words in judgment
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The bottom line

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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

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Executive summary

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In this first-instance award, the Industrial Court of Kenya at Mombasa (Rika J) determined a terminal benefits dispute between Hamisi Bakari, a former Cleaner employed by Hotel Sapphire Limited from 1st February 2006 at Kshs.9,865 per month, and his former employer. The claim was part of a series of related causes (Nos. 9 to 14 of 2013) and was decided in line with the Court's determination in Cause No. 9 of 2013, Lennox Ndume Misunga v. Hotel Sapphire Limited, whose respondent's witness, Francis Furaha Thoya, gave evidence answering all the claims. The Court found the Claimant had 160 days of accrued annual leave as at 1st November 2012; although a leave schedule allowed 30 days, the Claimant resigned voluntarily while on leave on 16th November 2012, prompting the employer to revise the balance downwards. The Court held that the Respondent's deposit of Kshs.21,601 to the Labour Office did not satisfy the outstanding leave entitlement and awarded 160 days' leave pay at Kshs.379.40 per day, totalling Kshs.60,707.70. It also awarded service pay of Kshs.11,382 for two years (2006 to 2008) and 16 days' salary and house allowance for December 2012 at Kshs.6,070, totalling Kshs.78,159.70. The Respondent was ordered to issue the Certificate of Service forthwith under Section 51 of the Employment Act 2007. The Court declared the Respondent's treatment of the Claimant an unfair labour practice violating Article 41 of the Constitution. The award was to be satisfied within 21 days; parties were to meet their own costs with no order on interest.

Key legal issues

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01

Accrued annual leave entitlement upon resignation

Holding

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

Reasoning

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.

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02

Service pay

Holding

The Claimant was granted service pay for two years, from 1st February 2006 to 1st February 2008, computed at 15 days' salary per year

Reasoning

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.

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03

Unfair labour practice and constitutional violation

Holding

The Respondent's treatment of the Claimant amounted to unfair labour practice and violated Article 41 of the Constitution of Kenya

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 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. 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. 3.The Respondent shall release to the Claimant his Certificate of Service forthwith
  4. 4.The monetary award be satisfied within 21 days of the delivery of this Award
  5. 5.Parties to meet their own costs, and no order on interest

Authorities

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Legislation

  • Employment Act 2007Section 51
  • Constitution of KenyaArticle 41
  • Industrial Court (Procedure) Rules 2010Rule 27(1)(a)

Cases cited (1)

  • Lennox Ndume Misunga v. Hotel Sapphire Limited
    Industrial Court at Mombasa, Cause No. 9 of 2013
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

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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, "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.