Yeziel Mathufali Daddah v Chairman [B O G] Tarasaa Youth Polytechnic [2016] KEELRC 557 (KLR)
The bottom line
#A Kenyan court ruled a polytechnic manager was wrongly denied salary and unfairly fired, awarding him over Kshs. 1 million.
What this practically means
#Executive summary
#Key legal issues
#Correct rate of monthly salary and identity of the employer
The Claimant was an employee of the Respondent at the TSC rate of Kshs. 32,240 per month; he was not a volunteer
The appointment letter of 25th July 2011 and the parties' adoption of the TSC/Ministry Job Group terms fixed the salary. The submission that the Claimant was the B.O.G's employee not entitled to TSC rates was rejected as incorrect. The documents designated volunteers specifically, and the Claimant was not so designated, so the volunteer defence failed.
Entitlement to arrears of salary and house allowance
Arrears of salary for 20 months at Kshs. 644,800 and house allowance at 15% of basic salary, Kshs. 96,720, awarded
Non-payment was undisputed; the Respondent's expectation of PSC absorption was irrelevant since the contract obligated only the Respondent to pay. Housing allowance was contractually promised at the applicable Ministry rate; the court endorsed 15% of basic salary under the Wage Guidelines, limited to the period of actual service.
Fairness of termination
Termination was unfair both substantively and procedurally; 6 months' salary compensation awarded
Allegations of complaints by students, parents, B.O.G members and ministry officials had no evidential support. No show-cause letter issued, no disciplinary meeting was convened, and the Claimant was never formally charged and heard under Section 41 of the Employment Act. Abscondment was unproved given the Tana River skirmishes. Compensation of 6 months' salary was granted.
Annual leave, sitting allowances, notice pay and rejected claims
Statutory minimum 21 days leave for 2012 plus pro-rata for 2013 granted at Kshs. 45,570; sitting allowances of Kshs. 26,000 and notice pay of Kshs. 32,240 granted; work night out and expense claims rejected
Section 28(1) of the Employment Act allows a minimum of 21 days annual leave and the contract showed no greater entitlement. B.O.G minutes resolved Kshs. 1,000 sitting allowance per meeting and the number of meetings was undisputed. Clause 4 of the contract with Sections 35 and 36 entitled the Claimant to one month's notice pay. Night-out and expense claims lacked evidential basis.
Legal principles established
#- An employer cannot escape its contractual obligation to pay salary on the basis that it expected the Government or a Service Commission to absorb and pay the employee
- Employees need not prove the employer's financial capacity to be paid their dues
- Termination without a disciplinary hearing in the manner prescribed under Section 41 of the Employment Act is substantively and procedurally unfair
Court orders
#- 1.Declaration that termination was unfair
- 2.Respondent to pay arrears of salary at Kshs. 644,800
- 3.Respondent to pay arrears of house allowance at Kshs. 96,720
- 4.Respondent to pay annual leave pay at Kshs. 45,570
- 5.Respondent to pay sitting allowances at Kshs. 26,000
- 6.Respondent to pay compensation for unfair termination at Kshs. 193,440
- 7.Respondent to pay notice pay at Kshs. 32,240 - total Kshs. 1,025,762
- 8.Certificate of Service to issue under Section 51 of the Employment Act 2007
- 9.Parties to meet their own costs of the litigation
- Jurisdiction invoked
- Employment and Labour Relations Court Act; Industrial Court [Procedure] Rules 2010, Rule 27[1][a]
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Yeziel Mathufali Daddah v Chairman [B O G] Tarasaa Youth Polytechnic [2016] KEELRC 557 (KLR)", Case Analysis (2016). Cause Number 154 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/557/eng@2016-07-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.