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ELRCPartially AllowedCause Number 646 of 2011· [2017] KEELRC 1675 (KLR)

Ezekiah Okumu Otieno v Patriotic Guards Limited [2017] KEELRC 1675 (KLR)

Employment and Labour Relations Court of Kenya
3 March 2017
ANAbuodha J. N.
614 words in judgment
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The bottom line

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A Kenyan security guard won only part of his employment claim because he could not produce receipts for expenses and NSSF contributions barred his service pay claim.

What this practically means

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Executive summary

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The claimant, formerly employed by the respondent as a guard from February 1999 until his voluntary resignation, claimed 26 days accrued leave, uniform deductions, refund of expenses incurred on the respondent's behalf while serving in Mombasa, service pay and unpaid NSSF contributions. The respondent denied the claims, asserting that any expenses should have been authorized and supported by receipts and vouchers, while admitting Kshs 2,000 in uniform deduction refunds. It further contended that the claimant, as an NSSF contributor, was not entitled to service pay. The court found it undisputed that the claimant resigned voluntarily and that the respondent did not contest the claim for 13 days of leave or the Kshs 2,000 uniform refund. On the expenses claim, the court held that such refunds are akin to special damages which must be strictly proved; the claimant merely tabulated the expenses without payment receipts, and the claim was disallowed. On service pay, the court held that under section 35(6)(d) of the Employment Act an NSSF contributor cannot claim service pay absent a pleaded CBA or union membership permitting it; that claim too failed. Judgment was entered only for the admitted uniform refund and the uncontested 13 days of leave. The court made no order on costs. The judgment was delivered at Nairobi on 3rd March 2017 by Abuodha J. N.

Key legal issues

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01

Proof of refund of expenses

Holding

Claim disallowed for failure to prove special damages

Reasoning

The respondent objected that the claimant neither sought prior authorization nor produced receipts. The court held such claims are akin to special damages requiring strict proof. The claimant only tabulated the expenses without supporting payment receipts, which was insufficient, and the refund claim therefore failed.

p. 1
02

Entitlement to service pay

Holding

Claim disallowed as claimant was an NSSF contributor and pleaded no CBA entitling him to service pay

Reasoning

Service pay is payable to employees not contributing to NSSF, save where a CBA provides otherwise. The claimant never pleaded union membership or the existence of a CBA permitting service pay despite NSSF membership. Section 35(6)(d) of the Employment Act therefore barred the claim.

p. 2
03

Admitted and uncontested heads of claim

Holding

Judgment entered on the admitted uniform refund of Kshs 2,000 and the uncontested 13 days of leave

Reasoning

The respondent did not contest the claim for 13 days of leave and admitted liability for Kshs 2,000 on account of uniform deductions. On these admitted and uncontested heads the court entered judgment for the claimant.

p. 2

Legal principles established

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  • Claims for refund of expenses are akin to special damages and must be strictly proved with receipts
  • An employee who contributes to NSSF is precluded by section 35(6)(d) of the Employment Act from claiming service pay unless a CBA provides otherwise

Court orders

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  1. 1.Judgment entered for the claimant on the admitted uniform refund of Kshs 2,000 and the uncontested 13 days of leave
  2. 2.No order on costs

Authorities

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Legislation

  • Employment Actsection 35(6)(d)
Jurisdiction invoked
Article 162(2) of the Constitution establishing the Employment and Labour Relations Court (inferred from court; judgment does not expressly cite it)

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, "Ezekiah Okumu Otieno v Patriotic Guards Limited [2017] KEELRC 1675 (KLR)", Case Analysis (2017). Cause Number 646 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1675/eng@2017-03-03

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