Mary Vihenda Hosea v Paper Converters Limited [2018] KEELRC 212 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the suit is res judicata
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
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.
Whether the claimant proved entitlement to salary adjustment and arrears equal to her colleagues' pay
Claim failed; the claimant did not discharge the burden of proof, having failed to produce the CBA governing her terms
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.
Whether the claimant was entitled to twelve months' compensation for wrongfully withheld dues
Claim failed; the remedy is confined to cases of unfair or wrongful termination, and the claimant remained in employment
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.
Legal principles established
#- 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
#- 1.Suit dismissed with no costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.