Jackson Kimani Waweru & 5 others v Attorney General [2018] KEELRC 958 (KLR)
The bottom line
#A Kenyan employment court confirmed that unpaid wages are calculated up to each employee's last day at work, not up to the date of judgment.
What this practically means
#Executive summary
#Key legal issues
#Meaning of 'separation' and 'dates of separation' in employment law
'Separation' refers to the end date, exit date and/or departure of the employee from employment with a given employer
The Employment Act, 2007 does not directly address 'separation', but the term can be inferred from 'termination' of employment when the employee exits, departs, or leaves employment in any lawful manner. The court construed paragraph 57 of its judgment accordingly, holding that wages accrued to each claimant's individual last date in employment, not to the date of judgment.
Entitlement of the 1st claimant whose consent order was found vague
The 1st claimant was effectively removed from the cause of action and has not sought clarification on the consent found vague
The court had found it curious that the 1st Claimant, transferred to the City Council of Nairobi on 5 November 2008, was suspended in January 2009 on other grounds, and had found the consent of 17 September 2010 to pay half salaries vague. Since he had not moved the court for clarification on that consent, he was removed from the cause of action.
Status of the 4th and 5th claimants who withdrew their claims
Having withdrawn their suits on 17 January 2012 after reinstatement, no claim exists for them
The 4th and 5th claimants were reinstated and withdrew their claims on 17 January 2012. A withdrawal of suit ended it and it cannot be revived for computation and payments; the orders of the court do not relate to these claimants as they have no existing suit against the respondents.
Individual separation dates of the 3rd and 6th claimants
The 3rd claimant's last date in employment was 22 December 2009 and the 6th claimant's was 21 December 2009
The court fixed the 3rd claimant's date of separation at 22 December 2009 (the date his employment ceased), rejecting the argument that computation should run to his death. The 6th claimant, summarily dismissed on 21 December 2009, had his date of separation fixed at that date.
Legal principles established
#- Separation dates in employment refer directly to the last date in employment and when the employee was last at work
- Withdrawal of a suit ends it and it cannot be revived for computation and payments
Court orders
#- 1.(a) The separation date is effectively the last day/date each claimant was at work, left work, exited work and or employment with the respondents ceased;
- 2.(b) The 1st claimant is removed from the cause of action;
- 3.(c) The 2nd claimant is not part of the cause of action herein;
- 4.(d) The 3rd claimant last date at work is 22nd December, 2009;
- 5.(e) The 4th and 5th claimants withdrew suit against the respondents on 17th January, 2012 and no claim(s) exists therefrom;
- 6.(f) The 6th claimant date of separation is effectively the 21st December, 2009 and dues shall be computed from such date.
- 7.The computations of owing dues and wages shall put the above orders into account.
- 8.The security deposits by the 3rd and 4th respondents shall be released putting the above into account.
- Jurisdiction invoked
- Rule 33 of the Employment and Labour Relations Court (Procedures) Rules, 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jackson Kimani Waweru & 5 others v Attorney General [2018] KEELRC 958 (KLR)", Case Analysis (2018). Cause No 490 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/958/eng@2018-10-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.