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ELRCPartially AllowedCause No. 163 of 2014· [2016] KEELRC 118 (KLR)

Gulzar Darvesh v Tricon International Limited [2016] KEELRC 118 (KLR)

Employment and Labour Relations Court of Kenya
24 November 2016
MOMaureen Onyango
1,583 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court awarded an employee his full unpaid salary because the employer's misconduct allegations were never properly pleaded or proven.

What this practically means

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Executive summary

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The Claimant, Gulzar Darvesh, sued Tricon International Limited for unpaid house salary of Kshs.1,159,353, costs and interest. He testified he was employed by the Respondent between January 2009 and June 2014 on a gross salary of Shs.100,000 and was not paid from January 2013 until he left employment; his efforts to obtain payment, including through the Kisumu County Labour Officer, went unanswered. The Respondent admitted employing the Claimant but alleged he negligently performed his duties and was involved in the theft or misappropriation of assets valued at about Shs.5 million, and sought to off-set the admitted claim from the value of the lost assets. Under cross-examination, the Respondent's Managing Director confirmed the Respondent owed the Claimant the amount claimed. The court framed one issue: whether the Respondent could off-set the admitted sum from the alleged loss. The court held that a set-off must be pleaded and the debt proved. The Respondent's statement of response only reserved the right to bring a counter-claim, its late attempt to amend to plead one was rejected, and there was no conclusive police report or proof of the value of the loss or of the Claimant's involvement. The court also found the defence was a sham and an abuse of court process, and awarded interest from the date of filing the claim. Judgment was entered for the Claimant for Shs.1,159,353 with costs and interest.

Key legal issues

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01

Whether the Respondent was entitled to a set-off of the admitted salary arrears against alleged misappropriated assets

Holding

The set-off failed: it was not pleaded, no counter-claim was pursued, and there was no proof of the loss or of the Claimant's involvement

Reasoning

The court held that entitlement to a set-off requires that it be pleaded and that the debt owed be proved. The Respondent's statement of response only reserved the right to institute a counter-claim; the attempt to amend to include a counter-claim came too late and was rejected. RW1's evidence showed only an inconclusive police report and an estimate of loss, with no proof of the Claimant's involvement. The Claimant denied the misappropriation under cross-examination.

p. 3

Legal principles established

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  • For a party to be entitled to a set-off it must first plead the set-off and secondly prove that the other party owes it money
  • Interest on an admitted amount accrues from the date of filing the claim where the defendant filed a sham defence only to admit the claim at the hearing

Court orders

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  1. 1.Judgment entered for the Claimant in the sum of Shs.1,159,353 as prayed and as admitted by the Respondent
  2. 2.Costs of the suit awarded to the Claimant
  3. 3.Interest on the decretal sum accruing from the date of filing the claim

Authorities

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Legislation

  • Employment ActSection 19(1)(b)

Cases cited (2)

  • Gilbert M. Muchina v Scarce Commodities Limited
    Cause No.7 of 2013
  • Edwin Nyamanga v Silver Holdings Ltd
    [2014]eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under Article 162(2) of the Constitution (employment and labour relations dispute)

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, "Gulzar Darvesh v Tricon International Limited [2016] KEELRC 118 (KLR)", Case Analysis (2016). Cause No. 163 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/118/eng@2016-11-24

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