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ELRCPartially AllowedCause No 1690 of 2015· [2018] KEELRC 632 (KLR)

Sabina Wambura Ributhi v Defence Forces Canteen Organisation [2018] KEELRC 632 (KLR)

Employment and Labour Relations Court
16 November 2018
BOByram Ongaya
1,184 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer must refund salary deductions for stock losses after a court found the employee was never implicated or given a fair hearing.

What this practically means

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Executive summary

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The claimant, employed by the respondent in November 2006 as a Supplies Clerk III, sued challenging monthly salary deductions imposed as recoveries for alleged stock losses, and claiming acting allowance for allegedly acting as Manager of stores C, D and E from April 2014 to 11.09.2015. The respondent counterclaimed for Kshs. 1,133,405.90 being audited losses from stores C, D and E allegedly attributable to the claimant's negligence or wilful default, invoking section 19(b) of the Employment Act, 2007. The court framed a single issue: whether the parties were entitled to the remedies prayed for. On the acting allowance claim, the court found that although the respondent's witness confirmed the claimant performed Assistant Manager duties, there was no written acting appointment as required by clause 66 of the Terms and Conditions of Service, no provision for acting allowance, no grievance raised during the acting period, and no specific pleading or quantification of the claim; that claim therefore failed as vague. On the recoveries, the court found that the investigation report for the stores did not implicate the claimant, attributing losses to three other named employees, and that no Board of Inquiry decision preceded the purported recovery as contemplated by clause 47 of the Terms and Conditions of Service. The recovery was therefore unfair. Judgment was entered for the claimant: the deductions were rescinded and stopped, all monies deducted were to be refunded by 05.12.2018 failing interest from judgment until full payment, the counterclaim was dismissed, and the respondent was ordered to pay costs of both the claim and the counterclaim.

Key legal issues

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01

Entitlement to acting allowance for allegedly acting as Manager from April 2014 to 11.09.2015

Holding

Claim dismissed as the claimant produced no written acting appointment and the claim was vague and unquantified

Reasoning

Clause 66 of the Terms and Conditions of Service requires acting appointments in writing with acting allowance being the salary difference between grades. RW confirmed the claimant performed Assistant Manager duties but there was no written appointment and no provision for acting allowance. The claimant also raised no grievance during the acting period, did not plead or quantify the amount, and gave no documented evidence of the Manager's salary, so the claim failed.

p. 2
02

Whether the respondent's monthly salary recoveries for stock losses and the counterclaim were lawful

Holding

Recoveries unfair; refund ordered; counterclaim dismissed

Reasoning

The investigation report for stores C, D and E did not implicate the claimant; losses were attributed to Florence Aloo, Allan Opiri and Joseph Langat. Under clause 47 of the Terms and Conditions of Service, misconduct charges require a Board of Inquiry, and an audit report has authority equal to a Board of Inquiry only where findings are disputed. No Board of Inquiry decision preceded the recovery, so the recovery was unfair and the counterclaim unfounded.

p. 2

Legal principles established

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  • A claim for acting allowance must be specifically pleaded and quantified, and supported by a written acting appointment and a provision for such allowance in the terms of service.
  • Salary recoveries for alleged stock losses imposed on an employee not implicated by the investigation report, without a Board of Inquiry decision, are unfair and must be refunded.

Court orders

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  1. 1.The respondent to rescind the decision of deducting the claimant's salary on monthly basis by way of recoveries and the recoveries to stop forthwith.
  2. 2.The respondent to refund all monies already deducted from the claimant's salary and to refund all of it by 05.12.2018 failing interest to be payable thereon from the date of the judgment till full payment.
  3. 3.Dismissal of the counterclaim.
  4. 4.The respondent to pay the costs of the claim and counterclaim.

Authorities

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Legislation

  • Employment Actsection 19(b)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment claims and counterclaims under the Employment Act, 2007

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, "Sabina Wambura Ributhi v Defence Forces Canteen Organisation [2018] KEELRC 632 (KLR)", Case Analysis (2018). Cause No 1690 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/632/eng@2018-11-16

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