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ELRCPartially AllowedCause No. 322 of 2015 (Formerly Milimani E & LRC Cause No. 36/2013)· [2016] KEELRC 144 (KLR)

Alfred Wekesa Katami v Registered Trustees Catholic Diocese of Kitale & 3 others [2016] KEELRC 144 (KLR)

Employment and Labour Relations Court
10 November 2016
MOMaureen Onyango
2,609 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 accounts clerk Shs.423,927 for being paid below statutory minimum wages, but rejected his constructive dismissal claim because he resigned voluntarily.

What this practically means

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Executive summary

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The Claimant, employed as an accountant/accounts clerk on 31st October 2006 at Shs.7,000 per month and attached to institutions run by the Catholic Diocese of Kitale, resigned on 3rd July 2012 and sued claiming constructive dismissal, salary arrears, underpayment, gratuity and damages for breach of contract. The Respondents filed a Memorandum of Reply denying the allegations but did not attend the hearing despite proper service, and adduced no evidence. The court framed two issues: whether the resignation constituted constructive dismissal and whether the Claimant was entitled to the prayers sought. Applying the doctrine of constructive dismissal as pronounced in Coca Cola East & Central Africa Ltd v Maria Kagai Ligaga (citing Western Excavating v Sharp), the court found the Claimant failed to prove the alleged salary reduction from Shs.7,000 to Shs.5,500, had no complaint letter, and that the Shs.7,000 salary was unchanged since 2006; the resignation letter cited lack of a contract and no increment rather than reduction of salary. Constructive dismissal was therefore not proved and the resignation was of the Claimant's own free will. Prayers for salary arrears, gratuity and damages accordingly failed. The only proved claim was underpayment: statutory minimum wages are presumed in every contract under section 26 of the Employment Act and section 48 of the Labour Institutions Act, and the court computed underpayments against the applicable statutory minimum rates for an Accounts clerk, awarding Shs.423,927, plus costs of the suit and interest on the decretal sum at court rates from the date of judgment. Judgment was delivered by Maureen Onyango, J, on 10th November 2016.

Key legal issues

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01

Constructive dismissal

Holding

Not proved; resignation was voluntary

Reasoning

The court found no proof that the salary was reduced from Shs.7,000 to Shs.5,500, as payroll extracts did not bear the Claimant's name and no complaint letter existed. The salary of Shs.7,000 had been constant since 2006, and non-issuance of a contract could not ground constructive dismissal since an appointment letter existed. The resignation letter cited lack of contract and no increment, not salary reduction.

p. 5
02

Underpayment

Holding

Claim proved; award of Shs.423,927

Reasoning

Relying on section 26 of the Employment Act and section 48 of the Labour Institutions Act, the court held statutory minimum wages are presumed in every contract. As an Accounts clerk the Claimant was entitled to statutory minimum rates under the Regulation of Wages (General) Order amendments; the difference between those rates and the Shs.7,000 actually paid was computed over the employment period.

p. 6

Legal principles established

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  • Statutory minimum terms and conditions of employment are presumed in every contract of employment, entitling an employee to not less than the statutory minimum rates of pay
  • Constructive dismissal requires proof of fundamental breach going to the root of the contract
  • Where an employer fails to produce a written contract, the burden of proving or disproving an alleged term of employment is on the employer

Court orders

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  1. 1.The Respondent to pay the Claimant underpayments of Shs.423,927
  2. 2.The Respondent to pay the Claimant's costs of the suit
  3. 3.The decretal sum to attract interest at court rates from the date of judgment

Authorities

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Legislation

  • Employment Actsections 9(2), 10(7), 26, 35(5), 35(6), 49(1)(c)
  • Labour Institutions Actsection 48
  • Regulation of Wages (General) Ordervarious amendments
  • Constitution of KenyaArticle 41

Cases cited (9)

  • Antony Mkala Chitari v Malindi Water and Sewerage Company Limited
    [2013] eKLR
  • Pretoria Society for the Care of the Retarded v Loots
    [1997] 6 BLLR 721
  • Vincent Omollo Obuom v Catholic Diocese of Nakuru
    [2015] eKLR
  • Joseph Aleper & Another v Lodwar Water and Sanitation Company Limited
    [2005] eKLR
  • Kenya Union of Commercial, Food and Allied Workers v Day Lite Dry Cleaners
    [2013] eKLR
  • Elijah Kipkoros Tonui v Ngara Operations T/A Bright Eyes Limited
    [2014] eKLR
  • Anthony Ochieng Onyango v Lwala Mixed Secondary School & 2 others
    [2014] eKLR
  • Coca Cola East & Central Africa Limited v Maria Kagai Ligaga
    [2015] eKLR
  • Western Excavating (ECC) Ltd v Sharp
    [1978] 1 CR 222
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and Labour Institutions Act (first-instance employment cause)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Alfred Wekesa Katami v Registered Trustees Catholic Diocese of Kitale & 3 others [2016] KEELRC 144 (KLR)", Case Analysis (2016). Cause No. 322 of 2015 (Formerly Milimani E & LRC Cause No. 36/2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/144/eng@2016-11-10

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