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ELRCPartially AllowedCause No 596 of 2013· [2018] KEELRC 397 (KLR)

Twiga Construction Limited v Julius Nyamai Mulatia [2018] KEELRC 397 (KLR)

Employment and Labour Relations Court
20 December 2018
LNLinnet NdoloMOMaureen Onyango
474 words in judgment
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The bottom line

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A Kenyan worker won his notice and leave pay claims but lost the rest because he had no evidence beyond his own word.

What this practically means

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Executive summary

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This was a claim by Julius Nyamai Mulatia against his former employer, Twiga Construction Limited, for unfair termination and assorted employment benefits. The Claimant alleged he was employed on 1st December 2010 as an ungraded artisan (mason) at a daily rate of Kshs. 450, and that his employment was unfairly terminated on 30th July 2011. He sought one month's salary in lieu of notice, prorata leave for 8 months, underpayment, compensation for 9 public holidays and 37 weekly rest days, and tools allowance, plus costs and interest. The Respondent filed a Defence dated 28th June 2013 admitting one month's pay in lieu of notice and 15 days leave pay, but denying underpayment, holiday and rest day work, and alleging a later employment date. The Respondent did not attend trial despite due notice, and the court heard the Claimant exparte. The court, per Linnet Ndolo J, held that the claims for underpayment, public holiday pay, rest day pay and tools allowance were special damages requiring specific proof; the Claimant produced no evidence beyond his word, and those claims were dismissed. The admitted claims for notice pay (Kshs. 13,500) and prorata leave (Kshs. 6,300) succeeded, totalling Kshs. 19,800 with interest at court rates from the date of filing suit until payment in full. Each party was ordered to bear their own costs. Judgment was signed at Mombasa on 17th December 2018 and delivered at Nairobi on 20th December 2018.

Key legal issues

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01

Proof of special damages in employment claims

Holding

Claims for underpayment, public holiday and rest day work and tools allowance are special damages that must be specifically proved; the Claimant failed to prove them.

Reasoning

The court classified the claims for underpayment, public holidays, weekly rest days and tools allowance as special damages. Apart from the Claimant's oral word, no documentary or other evidence was adduced to support these heads. The Respondent had denied these claims in its Defence, and the ex parte hearing did not relieve the Claimant of the burden of proof. Those claims accordingly failed and were dismissed.

p. 2
02

Admitted claims for notice pay and leave pay

Holding

The Respondent admitted owing one month's pay in lieu of notice and 15 days leave pay; judgment was entered accordingly at Kshs. 13,500 and Kshs. 6,300 respectively.

Reasoning

The Respondent's Defence admitted owing one month's pay in lieu of notice and 15 days leave pay. The court held these admitted heads payable and quantified notice pay at Kshs. 13,500 and prorata leave for 8 months at Kshs. 6,300, computed as 13,500/30x1.75x8, totaling Kshs. 19,800 with interest from the date of filing suit.

p. 2

Legal principles established

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  • Claims for underpayment, holiday and rest day pay and tools allowance are in the nature of special damages which must be specifically proved.

Court orders

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  1. 1.Judgment entered in favour of the Claimant for one month's salary in notice pay of Kshs. 13,500
  2. 2.Prorata leave for 8 months awarded at Kshs. 6,300 (13,500/30x1.75x8)
  3. 3.Total award of Kshs. 19,800 with interest at court rates from the date of filing suit until payment in full
  4. 4.Each party to bear their own costs
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over a claim of unfair termination and employment benefits (Memorandum of Claim filed in the court)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Twiga Construction Limited v Julius Nyamai Mulatia [2018] KEELRC 397 (KLR)", Case Analysis (2018). Cause No 596 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/397/eng@2018-12-17

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