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ELRCPartially AllowedNot stated in the judgment text provided· [2018] KEELRC 282 (KLR)

Esther Karimi Ndambiri v Pharmaceutical Manufacturing Company (K) Limited [2018] KEELRC 282 (KLR)

Employment and Labour Relations Court
20 December 2018
HWHellen Wasilwa
1,511 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan employer cannot withhold your salary to cover company vehicle repairs unless your contract clearly says you must pay for them.

What this practically means

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Executive summary

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The Claimant, formerly employed by the Respondent as a Quality Assurance/Regulatory Affairs Manager from 1st February 2014, sued for Kshs. 158,848/- being her unpaid salary for April 2014, plus interest and costs. She resigned by notice served on 1st April 2014 and the Respondent withheld her April salary, alleging the sums were applied to repair Motor Vehicle KAR 538F, a company vehicle assigned to her, which broke down at Ngara in March 2014. The Respondent denied negligence on its part, attributed the breakdown to the Claimant's negligence in using the vehicle for personal errands, and filed a counterclaim of Kshs. 130,703/- for repair costs. The Claimant argued that the counterclaim was incompetent for want of a verifying affidavit under Order 7 Rule 5(a) of the Civil Procedure Rules, 2010, and that the salary withholding violated Section 19 of the Employment Act. The Respondent conceded the absence of the verifying affidavit but relied on Article 159(2)(d) of the Constitution and case authority to argue the omission was not fatal. The court held there was no contractual provision requiring the Claimant to bear repair costs, that the vehicle had a driver and its stalling while she was driving did not show negligence, and that the Respondent failed to call a mechanic to prove the damage or fault. The claim was allowed as prayed with costs and interest at court rates from the date of filing, and the counterclaim was dismissed. Judgment delivered on 20th December 2018 by Hellen Wasilwa, Judge.

Key legal issues

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01

Withholding of salary for April 2014

Holding

The Respondent's withholding of the Claimant's salary was unjustified; the claim succeeded as prayed.

Reasoning

The Claimant's contract of employment contained no provision obliging her to meet repair costs of the vehicle assigned to her. The vehicle was assigned by the Respondent and had a driver; the fact that it stalled while the Claimant was driving it did not demonstrate negligence. Withholding the salary contrary to Section 19 of the Employment Act was therefore uncalled for, and the Claimant was entitled to the withheld sum with interest and costs.

p. 3
02

Negligence and the Counter Claim

Holding

The Counter Claim for Kshs. 130,703/- repair costs failed for want of proof of negligence and for lack of a Verifying Affidavit.

Reasoning

The Respondent alleged the Claimant negligently stalled the vehicle while on personal errands, but called no mechanic to assess the damage or attribute fault. RW1 admitted there was no contractual provision for deduction of repair costs from salary. The Counter Claim also lacked the verifying affidavit mandated by Order 7 Rule 5(a) of the Civil Procedure Rules, 2010. Accordingly it lacked merit and was dismissed.

p. 3

Legal principles established

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  • An employer may not withhold an employee's salary unless there is a contractual or statutory basis permitting deduction
  • An employer alleging employee negligence must prove it, including by expert or mechanical assessment of the alleged damage

Court orders

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  1. 1.Claim allowed as prayed: payment of Kshs. 158,848/- being April 2014 salary
  2. 2.Costs of the suit awarded to the Claimant
  3. 3.Interest at Court rates with effect from the date of filing the case
  4. 4.Counter Claim dismissed

Authorities

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Legislation

  • Employment ActSection 19(1)(b) and (c)
  • Civil Procedure Rules, 2010Order 7 Rule 5(a)
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (2)

  • Nabro Properties Limited versus Sky Structures Limited
    (2002) Vol. 2 KLR 299
  • Microsoft Corporation Versus Mitsumi Computer Garage Limited & Others
    High Court Civil Case Number 610 of 2001
Jurisdiction invoked
Original employment and labour relations jurisdiction of the Employment and Labour Relations Court

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, "Esther Karimi Ndambiri v Pharmaceutical Manufacturing Company (K) Limited [2018] KEELRC 282 (KLR)", Case Analysis (2018). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/282/eng@2018-12-20

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