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ELRCDismissedCause No 368 of 2014· [2018] KEELRC 212 (KLR)

Mary Vihenda Hosea v Paper Converters Limited [2018] KEELRC 212 (KLR)

Employment and Labour Relations Court
7 December 2018
1,590 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employee lost her equal pay and salary deduction claims because she couldn't produce the collective bargaining agreement proving her entitlement.

What this practically means

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Executive summary

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The Claimant, a permanent employee of the Respondent since 1988, sued on 11th March 2014 seeking adjustment of her salary to match colleagues in the same job group (basic pay Kshs.15,761 plus housing Kshs.3,900), payment of arrears, and twelve months' compensation for wrongfully withheld dues, alleging the Respondent deducted Kshs.6,000 monthly from April 2014 to recover salary arrears paid following Cause 378 of 2010, and that she was discriminated in her pay contrary to Articles 27 and 41 of the Constitution and Section 5(2) of the Employment Act. A preliminary objection on res judicata was dismissed by Wasilwa J on 3rd June 2015. The Respondent filed no defence and the suit proceeded by formal proof, with the Claimant testifying and both parties filing submissions. The court framed two issues: res judicata and entitlement to reliefs. It upheld the earlier finding that the suit was not res judicata save for prayer (b), whose subject matter had been granted by Rika J in the judgment of 28.3.2011. On the merits, the court held the Claimant failed to discharge the burden of proof: she did not produce the CBA governing her terms, so Section 10(7) of the Employment Act did not shift the burden to the employer, and she failed to prove the alleged deductions or entitlement to equal pay. The claim for twelve months' compensation failed because Section 49(1)(c) applies only to unfair or wrongful termination, and the Claimant remained employed; damages for discrimination were neither pleaded nor proved. The suit was dismissed with no costs on 7th December 2018 (Onesmus N. Makau J).

Key legal issues

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01

Whether the suit is res judicata

Holding

The suit is not res judicata except as respects prayer (b), whose subject matter (salary arrears) was granted in Cause 378 of 2010; the earlier finding by Wasilwa J was not disturbed

Reasoning

Wasilwa J had on 3rd June 2015 found that the issues in the two suits were different and dismissed the preliminary objection, save that the relief under prayer (b) had already been granted by Rika J in the judgment dated 28.3.2011. The claimant admitted she was paid those arrears. The court declined to interfere with that finding and proceeded to determine the remaining reliefs on the merits.

p. 2
02

Whether the claimant proved entitlement to salary adjustment and arrears equal to her colleagues' pay

Holding

Claim failed; the claimant did not discharge the burden of proof, having failed to produce the CBA governing her terms

Reasoning

The claimant alleged that under the CBA she was in the same job group as two colleagues earning higher pay, and produced their payslips, but did not produce the CBA itself even though her union was a custodian and could have supplied it. Section 10(7) of the Employment Act, which places the burden on the employer, applies only absent a written contract; here a CBA existed. She therefore failed to prove on a balance of probability the alleged entitlement and the alleged deductions.

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03

Whether the claimant was entitled to twelve months' compensation for wrongfully withheld dues

Holding

Claim failed; the remedy is confined to cases of unfair or wrongful termination, and the claimant remained in employment

Reasoning

Section 49(1)(c) of the Employment Act permits an award equivalent of up to twelve months' wages only where summary dismissal or termination of an employee's contract is unjustified. Since the claimant's services had not been terminated, the relief had no foundation. Damages for discrimination also failed as they were neither pleaded nor proved.

p. 2

Legal principles established

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  • Section 10(7) of the Employment Act, shifting the burden of proving contractual terms to the employer, applies only where there is no written contract of service
  • Compensation of up to twelve months' salary under Section 49(1)(c) of the Employment Act is available only where employment has been unfairly or wrongfully terminated or dismissed

Court orders

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  1. 1.Suit dismissed with no costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 41
  • Constitution of Kenya, 2010Article 27
  • Employment ActSection 5(2)
  • Employment ActSection 10(7)
  • Employment ActSection 49(1)(c)
  • Evidence ActSection 107

Cases cited (2)

  • VMK v CUEA
    [2013] eKLR
  • Julia Odhiambo Ogina v Andrew Horace O Omondi
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under Article 41 and Section 5(2) of the Employment Act as invoked by the Claimant; no specific provision cited in the judgment

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, "Mary Vihenda Hosea v Paper Converters Limited [2018] KEELRC 212 (KLR)", Case Analysis (2018). Cause No 368 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/212/eng@2018-12-07

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