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ELRCPartially AllowedCause Number 14 of 2013· [2015] KEELRC 1340 (KLR)

Mwinyihamisi Sare Ali v Hotel Sapphire Limited [2015] KEELRC 1340 (KLR)

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

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A Mombasa court ordered Hotel Sapphire to pay a former barman Sh116,817 in leave pay, service pay and December salary, and ruled its conduct unconstitutional.

What this practically means

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Executive summary

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This was a first-instance terminal benefits claim before the Industrial Court of Kenya at Mombasa, in which Mwinyihamisi Sare Ali, a former Bar Man of Hotel Sapphire Limited, sought terminal dues following his voluntary resignation while on leave in November 2012. The court, presided over by Rika J, expressly guided itself by its determination in the related decision in Cause No. 9 of 2013 (Lennox Ndume Misunga v Hotel Sapphire Limited), noting that these claims were part of a series registered as Causes No. 9 to 14 of 2013 with common prayers. The court found the Claimant was employed from 4th February 2003 earning Kshs.10,657 per month, had accrued 224 leave days, and that the Respondent's deposit of Kshs.24,023 to the Labour Officer did not satisfy his outstanding leave entitlement. The court awarded 194 days' annual leave pay (Kshs.79,517.60), service pay for five years from 2003 to 2008 (Kshs.30,742), and 16 days' salary and house allowance for December 2012 (Kshs.6,558), totalling Kshs.116,817. It declared the Respondent's treatment of the Claimant an unfair labour practice and a violation of Article 41 of the Constitution, and ordered release of the Certificate of Service under Section 51 of the Employment Act 2007. The monetary award was to be satisfied within 21 days. Each party was to bear its own costs and no order was made on interest, for reasons given in Misunga.

Key legal issues

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01

Outstanding annual leave entitlement

Holding

The Claimant was granted 194 days of accrued annual leave pay computed at Kshs.409.90 per day, totalling Kshs.79,517.60

Reasoning

The Claimant had 224 accrued leave days, was scheduled to take 30 days from 12th November 2012, but resigned voluntarily while on leave on 16th November 2012, leading the Employer to revise down the outstanding balance. The court found the Respondent's deposit to the Labour Officer did not satisfy the entitlement and awarded the computed balance.

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02

Service pay

Holding

Service pay was granted for 5 years, from 4th February 2003 to 4th February 2008, at 15 days' salary per year, totalling Kshs.30,742

Reasoning

The court applied the established formula of dividing monthly salary by 26 working days and multiplying by 15 days per year of service, restricted to the first five years of employment in line with the reasoning adopted in the related Misunga decision.

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03

Unfair labour practice and constitutional violation

Holding

The Respondent's treatment of the Claimant was declared an unfair labour practice and a violation of Article 41 of the Constitution

Reasoning

The court, guided by its determination in Cause No. 9 of 2013 (Misunga), found that the Respondent's conduct regarding the Claimant's terminal benefits constituted unfair labour practice, elevating the labour rights protection in Article 41 of the Constitution of Kenya 2010 to the basis of the declaration.

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04

Certificate of Service

Holding

The Respondent was ordered to release the Claimant's Certificate of Service forthwith under Section 51 of the Employment Act 2007

Reasoning

Section 51 of the Employment Act 2007 obliges an employer to issue a Certificate of Service; the court enforced this statutory duty directly in its final orders.

p. 2

Legal principles established

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  • An employer's treatment of an employee in respect of accrued terminal benefits may amount to unfair labour practice and a violation of Article 41 of the Constitution
  • A deposit made to the Labour Officer on account of outstanding leave may not satisfy the employee's outstanding annual leave entitlement
  • An employer must release a Certificate of Service forthwith as required under Section 51 of the Employment Act 2007
  • Annual leave pay is computed by dividing the monthly salary by 26 working days

Court orders

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  1. 1.Declaration that the Respondent's treatment of the Claimant amounted to unfair labour practice and was in violation of the Constitution of Kenya
  2. 2.The Respondent shall pay to the Claimant annual leave pay at Kshs.79,517.60; service pay at Kshs.30,742; 16 days' salary and house allowance at Kshs.6,558 – total Kshs.116,817
  3. 3.The Respondent shall release to the Claimant his Certificate of Service forthwith
  4. 4.The monetary award to be satisfied within 21 days of delivery of the Award
  5. 5.Parties to meet their own costs, and no orders on the interest

Authorities

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Legislation

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

Cases cited (1)

  • Lennox Ndume Misunga v. Hotel Sapphire Limited
    Industrial Court at Mombasa, Cause No. 9 of 2013
Jurisdiction invoked
Industrial Court of Kenya jurisdiction under Rule 27(1)(a) of the Industrial Court (Procedure) Rules 2010, determining the issue in dispute: terminal benefits

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, "Mwinyihamisi Sare Ali v Hotel Sapphire Limited [2015] KEELRC 1340 (KLR)", Case Analysis (2015). Cause Number 14 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1340/eng@2015-03-06

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