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ELRCPartially AllowedCause No. 154 of 2014· [2016] KEELRC 442 (KLR)

Thomas Ombuya Omao Getabu v County Government of Nyamira [2016] KEELRC 442 (KLR)

Employment and Labour Relations Court of Kenya at Kisumu
8 September 2016
813 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 a dismissed doctor compensation by agreement but refused gratuity, terminal leave and interest because his contract and pleadings never included them.

What this practically means

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Executive summary

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The claimant, Dr. Thomas Ombuya Omao Getabu, sued the County Government of Nyamira for remedies arising from termination of his employment, including salary for the unexpired 51 months of his contract, three months' pay in lieu of notice, 12 months' damages for wrongful dismissal, house and commuter allowances, severance pay, a declaration that the termination was unlawful, a certificate of service and costs. The respondent defended the termination as justified on grounds of gross misconduct. Before full hearing, the parties recorded a partial consent settlement on 2nd March 2016, under which judgment was to be entered for the claimant for 12 months' salary as compensation for wrongful termination, three months' salary in lieu of notice, and costs to the claimant. Three issues remained outstanding: gratuity, terminal leave and interest, which were argued by written submissions after settlement efforts failed. The court held that gratuity and terminal leave are not provided for in the Employment Act and would only be payable if provided for in the claimant's contract; perusal of the contract revealed no such provisions. Further, the claimant had not pleaded gratuity or terminal leave in his Memorandum of Claim, and following Odd Jobs v Mubia, a party cannot be awarded unpleaded reliefs. The interest prayer failed because the claimant did not specify what it related to. All three outstanding prayers were dismissed, and judgment was entered in terms of the consent agreement.

Key legal issues

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01

Entitlement to gratuity and terminal leave

Holding

Dismissed - neither the Employment Act nor the claimant's contract provides for gratuity or terminal leave, and the claimant did not plead them.

Reasoning

The court held that gratuity and terminal leave are not statutory entitlements under the Employment Act, so the claimant could only claim them if his contract provided for them. On perusal of the contract, no such provision existed, and the claimant did not point to any other applicable terms. Further, the reliefs were never pleaded in the Memorandum of Claim, and a party is bound by pleadings and cannot be awarded unpleaded reliefs.

p. 2
02

Entitlement to interest

Holding

Dismissed - not proved, as the claimant did not specify what the interest was in respect of.

Reasoning

The claimant's submissions did not specify the subject matter of the interest sought, leaving the court unable to determine entitlement. The prayer was accordingly dismissed for want of proof.

p. 2
03

Effect of the partial consent settlement

Holding

Judgment entered in terms of the consent agreement of 2nd March 2016 on the agreed heads; only the outstanding issues (gratuity, terminal leave, interest) required determination.

Reasoning

Following the recorded partial settlement awarding 12 months' salary as compensation for wrongful termination, three months' salary in lieu of notice, and costs to the claimant, the only remaining issues were gratuity, terminal leave and interest. Having failed to agree on those, the parties argued them by written submissions, and the court declined all three.

p. 2

Legal principles established

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  • A party is bound by his pleadings and cannot be awarded relief not prayed for, unless the parties' submissions leave no doubt that they intend the issue to be determined or it is incidental to the issues for determination.
  • Gratuity and terminal leave are not statutory entitlements under the Employment Act; they are payable only if provided for in the employment contract.

Court orders

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  1. 1.The claimant's prayers for payment of gratuity, terminal leave and interest are declined and dismissed
  2. 2.Judgment is entered in terms of the consent agreement recorded on 2nd March, 2016 (12 months' salary as compensation for wrongful termination, three months' salary in lieu of notice, and costs to the claimant)

Authorities

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Legislation

  • Employment Actnull

Cases cited (3)

  • Fred A. Odhiambo v Attorney General & Another
    [2013] eKLR
  • Absalom Ajusa Magomere v Kenya Nut Company Limited
    [2014] eKLR
  • Odd Jobs v Mubia
    [1970] EA 476
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act; cause filed under its jurisdiction)

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, "Thomas Ombuya Omao Getabu v County Government of Nyamira [2016] KEELRC 442 (KLR)", Case Analysis (2016). Cause No. 154 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/442/eng@2016-09-08

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