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ELRCPartially AllowedCause No 625 of 2011· [2018] KEELRC 1099 (KLR)

Morris Ndugure v Trustees of the Agricultural Society of Kenya [2018] KEELRC 1099 (KLR)

Employment and Labour Relations Court
28 September 2018
MOMAUREEN ONYANGO
1,715 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The claimant, employed by the respondent as an Accountant III from 21st April 1993, resigned by letter dated 30th June 2008 effective 31st July 2008. He sued for unpaid salary for May to July 2008, transport allowance on his transfer to Kisii, balance of subsistence allowance, 60 days' unpaid leave, gratuity, reimbursement of over-deductions on salary advances, medical allowances and co-operative deductions totalling Kshs.396,751, plus costs and interest. The respondent denied the claim and counterclaimed Kshs.1,119,460 for alleged misappropriation through undertakings, underbankings, unsupported payments, direct banking and unaccounted office float. Two issues were framed: whether the claimant was entitled to the prayers in his claim, and whether the respondent was entitled to the prayers in its counterclaim. The court found the withholding of three months' salary unjustified and awarded Kshs.207,162 as gross salary. Because the respondent had rejected the claimant's baggage quotations without offering what it considered reasonable, the court awarded the transport allowance of Kshs.45,000 as prayed. The claims for subsistence allowance, leave, gratuity, over-deductions, medical allowance and co-operative deductions failed for want of proof. The counterclaim was dismissed as no evidence supported it. The claimant was awarded costs of both the suit and the counterclaim, with interest on the sums granted from the date of filing suit, payable after subjecting the decretal sum to PAYE where applicable.

Key legal issues

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01

Withheld salary for May, June and July 2008

Holding

The claimant was entitled to his gross salary for the three withheld months at Kshs.69,054 per month, totalling Kshs.207,162

Reasoning

The resignation letter showed the claimant gave three months' notice effective 1st July 2008, offering July's service and leave balance in lieu of notice. The respondent did not deny the salary was unpaid and gave no justification for withholding it. The court computed the award based on the July 2008 payslip in the respondent's bundle.

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02

Transport/baggage allowance on transfer

Holding

The claimant was awarded Kshs.45,000 as prayed, the respondent having failed to offer a reasonable figure

Reasoning

The respondent's Code of Regulations (Section G, paragraph 5.14) obliged the Society to meet costs of transporting an officer's baggage on transfer. The respondent rejected the claimant's quotations as being on the higher side but did not offer what it considered reasonable, so the court awarded the sum as prayed.

p. 3
03

The respondent's counterclaim for Kshs.1,119,460 for misappropriation

Holding

The counterclaim was dismissed for want of proof

Reasoning

The respondent's witness did not support the counterclaim with evidence; no evidence was adduced to prove the alleged misappropriation of undertakings, underbankings, unsupported payments, direct banking and unsurrendered office float. The claims also related to Kisii Branch for periods before the claimant was transferred there.

p. 4

Legal principles established

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  • An employer who withholds salary without giving any reason or justification is liable to pay the salary due
  • An employee whose resignation letter offers leave in lieu of notice has no leave balance to claim
  • A counterclaim unsupported by evidence must fail

Court orders

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  1. 1.Award of Kshs.207,162 being gross salary for May, June and July 2008
  2. 2.Award of Kshs.45,000 transport/baggage allowance
  3. 3.Dismissal of the prayers for balance of subsistence allowance, 60 days unpaid leave, gratuity, reimbursement of over-deduction, medical allowance and co-operative deductions
  4. 4.Dismissal of the respondent's counterclaim of Kshs.1,119,460
  5. 5.Costs of the suit and of the counterclaim awarded to the claimant
  6. 6.Interest on the amounts granted from date of filing suit, payable on the decretal sum after subjecting it to PAYE where applicable

Authorities

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Legislation

  • Agricultural Society of Kenya Code of RegulationsSection G, paragraphs 5.6, 5.7 and 5.14
  • A.S.K code of the regulationSection F I.1(b)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment claims and counterclaim (not expressly cited in 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, "Morris Ndugure v Trustees of the Agricultural Society of Kenya [2018] KEELRC 1099 (KLR)", Case Analysis (2018). Cause No 625 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1099/eng@2018-09-28

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