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ELRCDismissedNot stated in the judgment· [2016] KEELRC 38 (KLR)

Benjamin Langwen v National Environment Management Authority [2016] KEELRC 38 (KLR)

Employment and Labour Relations Court
15 December 2016
1,070 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court ruled that unfair termination payouts must be calculated on gross salary, not net pay, and statutory deductions apply automatically.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nairobi, delivered by M. Mbaru J on 15th December 2016, determines a dispute over the interpretation and computation of terminal dues under order (a) of the court's judgment of 30th May 2016, in which the Claimant was found to have been unfairly terminated and awarded, in the alternative, salaries due for 3 years plus 12 months' compensation at his last gross salary. The Respondent applied by notice dated 27th October 2016 for a declaration that the 3 years' salaries be computed on net salary (Kshs.225,155.00 per month, totalling Kshs.8,105,580.00), arguing that order (b) specifically referenced gross salary whereas order (a) referred to net salary. The Claimant maintained that gross salary of Kshs.321,650.00 per month applied. The court held that section 49 of the Employment Act governs computation of terminal dues and that, upon unfair termination, all terminal dues are based on the last gross monthly wage or salary. Basing dues on net pay would deny the employee entitlements and disadvantage him. Section 49(2), making payments subject to statutory deductions, is mandatory and automatic, whether or not the court prescribes it; computing on net pay would expose the Claimant to double taxation given P9 form requirements and KRA penalties. The court applied its prior rulings in Wilson Sibiya v KNEC and John Kinyanjui Gateru v Family Bank. The application was accordingly determined with the dues computed on gross salary at Kshs.11,579,400.00, subject to statutory deductions.

Key legal issues

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01

Whether the 3 years' salaries under order (a) of the judgment of 30th May 2016 should be computed on net or gross pay

Holding

The dues are payable on gross salary, translating to Kshs.321,650.00 per month for 3 years, totalling Kshs.11,579,400.00

Reasoning

The court reasoned that section 49 of the Employment Act governs computation of terminal dues and anchors them on the gross monthly wage at the time of dismissal. Basing terminal dues on net pay would deny the employee benefits, allowances and emoluments he would have earned had termination not occurred, placing him at a disadvantage. The contrast between order (a) and order (b) did not justify a net computation.

p. 2
02

Whether statutory deductions apply to the terminal dues

Holding

Section 49(2) of the Employment Act mandatorily applies; the gross pay is subject to statutory deductions

Reasoning

Section 49(2) is mandatory and automatic, not at the option of the employer, whether or not the court specifically prescribes it. Applying net pay would force the Claimant into double taxation since his employer must issue a P9 form for KRA annual returns, with penalties if statutory dues are unpaid. This accords with the court's prior rulings in Wilson Sibiya and John Kinyanjui Gateru.

p. 2

Legal principles established

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  • Upon unfair termination, all terminal dues payable to an employee are to be based on the last gross monthly wage or salary at the time of dismissal or termination
  • Section 49(2) of the Employment Act applies automatically and mandatorily to any payments under section 49, whether the court specifically prescribes it or is silent

Court orders

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  1. 1.The Respondent's application for computation of the 3 years' salaries on net pay is declined
  2. 2.The 3 years' dues payable to the Claimant under order (a) of the judgment of 30th May 2016 shall be based on the gross salary, amounting to Kshs.11,579,400.00
  3. 3.Such dues shall be subject to statutory deductions in accordance with section 49(2) of the Employment Act

Authorities

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Legislation

  • Employment ActSection 49(1)
  • Employment ActSection 49(1)(c)
  • Employment ActSection 49(2)

Cases cited (2)

  • Wilson Sibiya versus Kenya National Examination Council
    Cause No.1659 of 2014
  • John Kinyanjui Gateru versus The Family Bank Ltd
    Cause No.743 of 2013
Jurisdiction invoked
Section 49 of the Employment Act (court's jurisdiction to compute and enforce terminal dues under its prior judgment)

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, "Benjamin Langwen v National Environment Management Authority [2016] KEELRC 38 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/38/eng@2016-12-15

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