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ELRCDismissedCause No. 37 of 2014· [2018] KEELRC 442 (KLR)

Joan Nduta Wanjiku v Shrikesh Ruparel T/A Trade Roots Ltd [2018] KEELRC 442 (KLR)

Industrial Court of Kenya
3 December 2018
1,807 words in judgment
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The bottom line

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Kenya's Employment Court dismissed a former employee's Kshs.749,000 claim because she offered no evidence to prove her unpaid dues.

What this practically means

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Executive summary

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The claimant, Joan Nduta Wanjiku, sued Shrikesh Ruparel T/A Trade Roots Ltd at the Industrial Court of Kenya, Nairobi, claiming Kshs.749,000/= in unpaid employment dues arising from five years of service from 4th August 2008 until she resigned by a two-month notice tendered on 3rd June 2013. She claimed unpaid NSSF contributions, overtime (2.5 hours daily from 2009 to 2013 and on Saturdays), house allowance, service pay and leave allowance, all pleaded as entitlements under the Employment Act, 2007. The respondent denied the claim in totality, asserting an oral contract under which Saturdays were normal working days, salary was consolidated and inclusive of house allowance, NSSF contributions were duly remitted, and leave days were exhausted. The respondent relied on section 107 of the Evidence Act and the Gatirau Peter Munya case to place the burden of proof on the claimant. The court framed two issues: entitlement to the relief sought and costs. Holding that no termination issue arose since the claimant resigned voluntarily, and noting that the claimant filed no submissions and led no evidence, the court found the claim to be an afterthought lacking merit, apparently aimed at extorting the respondent. The claim was dismissed in its entirety, but the court, while observing that costs would ordinarily fall on the claimant, chose to forgive her and ordered that each party bear their own costs. The judgment is dated and signed 29th November 2018 by D. K. Njagi Marete, J, and delivered 3rd December 2018 before Maureen Onyango, Principal Judge.

Key legal issues

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01

Whether the claimant is entitled to the unpaid dues claimed under the Employment Act (NSSF contributions, overtime, house allowance, service pay, leave allowance)

Holding

The claim fails in its entirety for want of proof; the claimant did not discharge the burden of proof

Reasoning

The claimant resigned on her own volition by letter dated 3rd June 2013, so no termination issue arises. She filed no written submissions and led no evidence in support of the claim. The respondent demonstrated that NSSF contributions were remitted, salary was consolidated inclusive of house allowance, Saturdays were normal working days, and leave was exhausted. Relying on section 107 of the Evidence Act and the Munya case, the burden lay on the claimant and was not discharged. The claim was found to be an afterthought aimed at extorting the respondent.

p. 4
02

Who bears the costs of the claim

Holding

Although the claimant would ordinarily bear costs, the court forgave her and ordered each party to bear their own costs

Reasoning

The court observed that costs would ordinarily be a burden of the claimant given the frivolous nature of the claim that had hung over the respondent for nearly five years, but chose to forgive the claimant and direct that each party bear their own costs.

p. 4

Legal principles established

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  • A party asserting a legal right or liability dependent on facts must prove those facts - the burden of proof rests on the claimant

Court orders

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  1. 1.The claim is dismissed
  2. 2.Each party bears their own costs of the claim

Authorities

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Legislation

  • Employment ActGeneral (unpaid dues provisions)
  • Evidence Act, Chapter 80, Laws of KenyaSection 107

Cases cited (1)

  • Gatirau Peter Munya vs. Dickson Mwenda Kithinji & Others
    [2014] eKLR
Jurisdiction invoked
Employment and labour relations disputes under Article 162(2) of the Constitution establishing the Industrial Court (implied from the court's jurisdiction over employment claims); not expressly cited 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, "Joan Nduta Wanjiku v Shrikesh Ruparel T/A Trade Roots Ltd [2018] KEELRC 442 (KLR)", Case Analysis (2018). Cause No. 37 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/442/eng@2018-12-03

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