Philip Karuga Kanoga v Kenya Suitcase Manufacturers Limited [2016] KEELRC 679 (KLR)
The bottom line
#A Kenyan court ruled that NSSF-registered employees cannot claim service pay, and a consolidated salary that includes house allowance blocks extra allowance claims.
What this practically means
#Executive summary
#Key legal issues
#Entitlement to house allowance
Claim dismissed as the salary was consolidated and inclusive of house allowance
The court examined the appointment letter dated 30 March 1989 and confirmed that the claimant's monthly salary was a consolidated pay inclusive of house allowance. The express contractual provision displace the statutory presumption of un-included house allowance, so no additional claim could lie.
Entitlement to service pay
Claim dismissed; NSSF membership disqualifies service pay under section 35(6)(d) EA
Section 35(6)(d) of the Employment Act disqualifies NSSF members from service pay. The exception applies only where the employer failed to remit NSSF contributions regularly, and the claimant adduced no evidence of non-remittance. Being a managerial employee outside the CBA did not entitle him to a higher benefit.
General damages for delayed retirement
Claim dismissed for lack of merit
On a balance of probability the claimant continued serving voluntarily after attaining retirement age. He produced no records or other evidence proving he was forced to continue working because the respondent could not pay his terminal dues. The Employment Act also does not provide for general damages for delayed retirement.
Salary for 8 days, pro rata leave, leave travelling allowance and 2013/2014 annual leave
Admitted heads granted; 2013/2014 leave claim dismissed
The claims for salary for 8 days worked in October 2014, pro rata leave and leave travelling allowance were admitted and granted as prayed. The 2013/2014 annual leave claim failed because the retirement notice of 5 September 2014 allowed the claimant annual leave from 8 September to 7 October 2014, which he took.
Legal principles established
#- Employees who are members of the NSSF are disqualified from claiming service pay under section 35(6)(d) of the Employment Act, unless the employer failed to remit NSSF contributions regularly.
Court orders
#- 1.Judgment entered for the claimant in the sum of Kshs.16,153 plus interest from the date thereof
- 2.Each party to bear their own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act (employment dispute; no specific provision quoted in judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Philip Karuga Kanoga v Kenya Suitcase Manufacturers Limited [2016] KEELRC 679 (KLR)", Case Analysis (2016). Cause 9 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/679/eng@2016-09-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.