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ELRCDismissedNot stated in judgment (Memorandum of Claim filed 10th June 2010)· [2018] KEELRC 451 (KLR)

Kenya Hotels and Allied Workers Union v Panari Hotel [2018] KEELRC 451 (KLR)

Employment and Labour Relations Court
14 December 2018
MOMAUREEN ONYANGO
1,677 words in judgment
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The bottom line

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A Kenyan employment court dismissed hotel workers' service charge and benefits claims because their contracts excluded the benefit and the union failed to prove its case.

What this practically means

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Executive summary

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The Claimant Union filed a Memorandum of Claim on 10th June 2010 on behalf of four grievants - Dorcas Njeri Macharia, Geoffery Alukwe Suchi, Peter Munguti Muia and Boniface Mukwate Kioko - seeking permanent orders against termination without due process, reinstatement of any terminated grievant, payment of service charge and accrued dues, and in the alternative twelve months' compensation. Part of the claim was compromised pursuant to a court direction of 2nd July 2015, with the 1st grievant having left employment and two others re-employed on full terms, leaving only the question of service charge and accrued dues under prayer 4.3. The Respondent filed only grounds of opposition and a replying affidavit, and neither responded to the memorandum nor filed submissions. Maureen Onyango J held that prayers not pleaded - underpayment, leave, severance and holiday pay - could not be entertained, applying the Court of Appeal's decision in the Mutinda Mule case on parties being bound by their pleadings. On service charge, the grievants' offer letters expressly excluded eligibility, the Union's constitution excerpt did not establish entitlement, and the Union led no satisfactory evidence of computation, following Matoka v Severin Sea Lodge and the Pinewood Resort case. The pleaded salary arrears were inconsistent with the payslips, and no satisfactory proof of overtime hours was produced. The claim was dismissed with no orders for costs on 14th December 2018.

Key legal issues

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01

Whether parties are bound by their pleadings

Holding

Prayers not pleaded cannot be granted on the strength of submissions

Reasoning

The Court of Appeal authority in the Mutinda Mule case was held to state the proper legal position. Since the Claimant did not plead underpayment, leave days, severance pay and holiday pay in the Memorandum of Claim, those heads could not be entertained merely because they appeared in submissions.

p. 5
02

Whether the grievants were entitled to service charge

Holding

The claim for service charge failed for lack of particulars, proof and contractual basis

Reasoning

The grievants' offer letters expressly excluded eligibility for service charge. The Union's constitution excerpt did not show service charge was payable to members, and the Claimant did not specify amounts or the basis of computation, following the Matoka and Pinewood Resort authorities.

p. 5
03

Whether salary arrears and overtime were proved

Holding

Not proved; the pleaded arrears were inconsistent with the payslips and no satisfactory evidence of overtime hours was produced

Reasoning

The 1st grievant pleaded Kshs.42,495 as June 2010 salary arrears yet her April 2010 payslip showed gross pay of Kshs.14,260, an inconsistency. No evidence established the exact overtime hours tabulated in prayer 4.3 of the Memorandum of Claim.

p. 5

Legal principles established

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  • Parties are bound by their pleadings, which limit the issues upon which a trial court may pronounce
  • A claimant seeking service charge must lead satisfactory evidence, including particulars of how the benefit is computed, to sustain the claim

Court orders

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  1. 1.The claim is dismissed
  2. 2.No orders for costs (each party to bear own costs)
Jurisdiction invoked
Employment and labour relations jurisdiction (Labour Relations Act; Memorandum of Claim under the Employment Act)

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, "Kenya Hotels and Allied Workers Union v Panari Hotel [2018] KEELRC 451 (KLR)", Case Analysis (2018). Not stated in judgment (Memorandum of Claim filed 10th June 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/451/eng@2018-12-14

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