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ELRCPartially AllowedNot stated in the judgment as provided· [2018] KEELRC 267 (KLR)

Beatrice Ombaka Asienwa v City Council of Nairobi [2018] KEELRC 267 (KLR)

Employment and Labour Relations Court
20 December 2018
BOByram Ongaya
1,649 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court ordered a county government to pay a retired officer Kshs. 430,000 for pension deductions and leave pay it withheld, with interest dating back to 1999.

What this practically means

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Executive summary

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The plaintiff, a former employee of the defendant (retiring as Chief Administrative Officer), sued for Kshs. 430,000 plus Kshs. 19,484 monthly until payment, costs and interest. She claimed Kshs. 250,000 in contributions deducted from her salary for the Kenya Local Government Officers' Superannuation Fund but never remitted by the defendant, and Kshs. 180,000 for 205 accumulated unpaid leave days accrued by her retirement on 31.07.1999. The defendant admitted the employment relationship but denied the claims and sought dismissal; it filed no witness statement and called no witness. The court framed a single issue: whether the plaintiff was entitled to the remedies prayed for. It found the payslips and Fund manager's confirmation established non-remission of deductions, following Morris Kavale Kasyoki v Narcol Alluminium Rolling Mills Ltd that deductions without remission amount to theft of the employee's money. Post-retirement demands by the defendant for imprest, overpayment, medical claims and security bonds were held unfounded, as the plaintiff had cleared without liability, no counterclaim was filed, and an officer had confirmed clearance. The 205 unpaid leave days were confirmed by the defendant's own documents. The court awarded Kshs. 430,000 with interest at court rates from 01.08.1999 to 20.12.2018, payable by 31.01.2019 failing which further interest would accrue, plus costs of the suit. Claims for monthly salary until remittance and leave allowance failed: the salary claim under clause 29(i)(e) required retention on temporary terms, which did not apply as the plaintiff retired at her own instance, and the leave allowance claim was not pleaded. Judgment was delivered at Nairobi on 20 December 2018 by Byram Ongaya J.

Key legal issues

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01

Whether the plaintiff was entitled to the Kshs. 250,000 unremitted superannuation contributions and accumulated leave pay of Kshs. 180,000 (total Kshs. 430,000)

Holding

Yes - the payslips and confirmation by the Fund manager established deductions without remission, and the defendant's own documents confirmed 205 accumulated paid leave days unpaid

Reasoning

The plaintiff's payslips evidenced monthly deductions to KLGOSF which the Fund manager confirmed were never remitted by the defendant. Following Morris Kavale Kasyoki v Narcol Alluminium Rolling Mills Ltd, such non-remission amounts to theft of the employee's money. The defendant's documents confirmed 205 approved accumulated leave days unpaid, justifying the Kshs. 180,000 award. The defendant filed no counterclaim and its post-clearance demands were found unfounded and intended to delay the plaintiff's benefits.

p. 2
02

Whether the defendant could withhold benefits for alleged liabilities (imprest, overpayment, medical claim, security bond)

Holding

No - the plaintiff cleared without liability; the defendant filed no counterclaim and adduced no witness

Reasoning

The plaintiff had cleared from service with no disciplinary or recovery proceedings pending. Her evidence that an officer confirmed all issues were cleared was uncontradicted, the defendant having filed no witness statement or witness. The late demands were found to be a scheme to delay her benefits, and any genuine claim should have been raised by counterclaim, which was never filed.

p. 2

Legal principles established

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  • A deduction made from an employee's salary without remission by the employer amounts to extortion or outright theft of the employee's money

Court orders

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  1. 1.Payment of the sum of Kshs. 430,000.00 plus interest at Court rates from 01.08.1999 to 20.12.2018 as the principal amount awarded
  2. 2.The defendant to pay the plaintiff the sum in (a) by 31.01.2019 failing which interest at Court rates from the date of judgment till full payment
  3. 3.The defendant to pay the plaintiff costs of the suit

Authorities

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Cases cited (1)

  • Morris Kavale Kasyoki –Versus- Narcol Alluminium Rolling Mills Limited
    [2014]eKLR
Jurisdiction invoked
Employment and labour relations dispute heard under the Court's original jurisdiction (specific provision not stated 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, "Beatrice Ombaka Asienwa v City Council of Nairobi [2018] KEELRC 267 (KLR)", Case Analysis (2018). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/267/eng@2018-12-20

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