Lorekai Lokosio v Shompole Group Ranch [2018] KEELRC 328 (KLR)
The bottom line
#A Kenyan court awarded a terminated driver Kshs. 262,000 and threw out the employer's Kshs. 653,500 counterclaim because it was filed too late.
What this practically means
#Executive summary
#Key legal issues
#Whether the counterclaim succeeds
The counterclaim fails both on the merits and as time-barred
The respondent failed to establish the claimant's liability for spare parts and repairs; the admitted 9-month salary arrears suggested financial inability to maintain the vehicle; there was no grievance, dispute or disciplinary action on the matters; and the cause of action arose on termination on 21.08.2012, so the three-year limitation under section 90 expired on or about 21.08.2015, well before the counterclaim of 19.06.2018.
Entitlement to one month's salary in lieu of notice
Awarded at Kshs. 15,000.00 under section 35 of the Employment Act because termination was abrupt and without notice
It was not in dispute that the respondent employed the claimant as a driver from 08.11.2007 and that employment ended on 21.08.2012 without notice. The court held the abrupt termination entitled the claimant to notice pay under section 35 of the Employment Act.
Entitlement to annual leave for 2010
Awarded Kshs. 10,000.00 under section 28 of the Employment Act as there was no evidence leave was given
The respondent offered no evidence that the claimant was given annual leave for 2010; the court therefore awarded the claimed leave amount under section 28 of the Employment Act.
Entitlement to service pay for 4 years
Claim for service pay/severance found reasonable and justified and awarded
The claimant was not a member of NSSF and there were no alternative separation benefits arrangements; the separation was in the nature of redundancy, entitling the claimant to similar pay as severance under section 40 of the Employment Act.
Entitlement to refund of unwarranted salary deductions of Kshs. 72,000.00
Awarded as claimed; the deduction was established on a balance of probability
The claimant's unrebuted evidence that he handed his letter of 17.11.2010 on deductions to the respondent's chairman, vice chairman and secretary, none of whom were called to rebut it, together with the absence of evidence of an alternative mode of paying salary, established the deductions on a balance of probability.
Legal principles established
#- A claim for service pay lies where the employee was not a member of NSSF and the parties had no alternative separation benefits arrangements; separation by redundancy attracts severance pay under section 40 of the Employment Act
- A counterclaim arising out of a contract of service is subject to the three-year limitation period in section 90 of the Employment Act
Court orders
#- 1.Payment of a sum of Kshs. 262,000.00 by 31.01.2019 failing interest to be payable thereon at Court rates from the date of the termination 21.08.2012 till the date of full payment
- 2.The respondent to pay the claimant's costs of the suit
- 3.The dismissal of the counterclaim with costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (reference to section 90 and section 35 of the Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lorekai Lokosio v Shompole Group Ranch [2018] KEELRC 328 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/328/eng@2018-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.