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ELRCPartially AllowedCause No. 791(N) of 2009 (with related Cause No. 897 of 2011)· [2016] KEELRC 1415 (KLR)

Elly Ouma Hongo v Kenya National Union of Teachers - Kisumu East Branch & 5 others [2016] KEELRC 1415 (KLR)

Industrial Court (Employment and Labour Relations Court)
11 March 2016
2,334 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan union had to pay Kshs.578,635 because it could not prove tax payments with official KRA receipts and proper records.

What this practically means

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Executive summary

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This ruling by the Industrial Court (Maureen Onyango J, Kisumu) determined two competing applications arising from a consent judgment of 16th March 2012 in which the 1st Respondent union agreed to pay the Claimant Kshs.3,016,149 in monthly instalments of Kshs.100,000, with liberty to execute by garnishee in default. The 1st Respondent sought recall of a garnishee order absolute and taking of accounts, contending it had overpaid after remitting Kshs.756,000 to KRA as tax. The Claimant sought a garnishee order absolute for Kshs.578,635.30. The court framed three issues: whether the full decretal sum had been paid, the validity of the KRA remittances, and entitlement to garnish the union's account. It found a KRA manager's letter insufficient proof of payment, no official receipt or compliant tax breakdown was produced, and the whole sum was not taxable at a flat 30%. The authorities relied on by the Respondent concerning section 49(2) of the Employment Act were distinguished as limited to section 49(1) awards. Because the employer failed to issue itemised pay statements as required by section 20 of the Employment Act, it bore the burden of proving payments were not based on net pay. The court dismissed the Respondent's application, found Kshs.578,635.30 outstanding, issued a garnishee order absolute against the union's account at Kisumu Teachers S&CCS, and awarded the Claimant costs of both applications. The challenge to the 27th April 2015 orders was rendered moot as they had been granted by consent.

Key legal issues

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01

Whether payments to KRA could be credited against the decretal sum

Holding

The 1st Respondent failed to prove the KRA payments; only Kshs.2,437,513.70 was paid, leaving Kshs.578,635.30 outstanding

Reasoning

The court noted a letter from a KRA manager is not confirmation of receipt; there was no official receipt, no tabulation and no mention of the remittance manner. The consent covered multiple heads not all taxable at a flat 30%, and section 49(2) of the Employment Act did not apply to the consent award as agreed. The Employer's Guide to PAYE prescribes taxation per head of payment.

p. 3
02

Relevance of Hosea Njeru Kagondu and Paul Ngolwa on statutory deductions

Holding

Distinguished as inapplicable because the consent was not limited to section 49(1) awards

Reasoning

The court held the authorities concerned awards under section 49(1) of the Employment Act, whereas the consent agreement here comprised various heads including severance and lump sum payments not limited to section 49(1). Further, the whole amount was not demonstrably subject to income tax at 30%.

p. 4
03

Whether garnishee orders made on a date listed for mention should be set aside

Holding

No - the issue was moot and the orders were made by consent

Reasoning

Although the Claimant had erroneously served a mention notice, both parties attended court on 27th April 2015 and the orders were granted by consent. Given the findings on the balance due, the procedural complaint had been overtaken by events and the Omega Enterprises and Floriculture authorities were not determinative.

p. 5

Legal principles established

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  • A party alleging payment of income tax on decretal sums must prove payment by an official KRA receipt accompanied by a breakdown compliant with the Employer's Guide to PAYE
  • Where an employer fails to issue an itemised pay statement as required by section 20 of the Employment Act, it bears the burden of proving that payments were not based on net pay after taxation

Court orders

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  1. 1.Dismissal of the 1st Respondent's notice of motion dated 15th May 2015
  2. 2.1st Respondent to pay the Claimant Shs.578,635.30 being the balance of the decretal sum
  3. 3.Garnishee order absolute attaching the Kenya Union of Teachers Kisumu East Branch Account No.11609 at Kisumu Teachers Savings and Credit Co-operative Society for Kshs.578,635.30 payable to the Claimant's Account No.1126231147 at Kenya Commercial Bank Limited, Kisumu Branch
  4. 4.Respondents to pay the Claimant's costs of both applications

Authorities

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Legislation

  • Constitution of KenyaArticle 2(1) and 3(1)
  • Constitution of KenyaArticle 210(1)
  • Employment Actsection 49(2) and section 49(1)
  • Employment Actsections 2 and 3
  • Employment Actsection 20

Cases cited (5)

  • Hosea Njeru Kagondu v Kenya Union of Commercial Food & Allied Workers
    Industrial Court Cause No.109 of 2010
  • Paul Ngolwa v Telkom Kenya Limited
    [2014] eKLR
  • Omega Enterprises (Kenya) Limited v Kenya Tourist Development Corporation Limited & 2 others
    [1998] eKLR
  • Floriculture International Limited v Central Kenya Limited & 3 Others
    [1995] eKLR
  • Mrs. Rahab Wanjiru Evans v Esso Kenya Ltd
    Civil Appeal No.13 of 1995 (unreported)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over the causes settled by consent; not expressly stated in the judgment

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, "Elly Ouma Hongo v Kenya National Union of Teachers - Kisumu East Branch & 5 others [2016] KEELRC 1415 (KLR)", Case Analysis (2016). Cause No. 791(N) of 2009 (with related Cause No. 897 of 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1415/eng@2016-03-11

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