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ELRCDismissedCause No. 970 of 2014· [2018] KEELRC 1257 (KLR)

Kudheiha Workers v Board of Management of Christian Industrial Training Center [2018] KEELRC 1257 (KLR)

Employment and Labour Relations Court
2 July 2018
HWHellen S. Wasilwa
1,761 words in judgment
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The bottom line

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A Kenyan court dismissed a union's claims for gratuity, fee refunds and allowances because it had no documents proving employees were entitled to them.

What this practically means

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Executive summary

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The Claimant, a trade union with a recognition agreement with the Respondent dating to 1990, sued on behalf of two grievants, Nichodemus Kalugho Shereta and David King'oo Nzangi, seeking damages for unpaid dues after both resigned in 2011. The claims included refund of college/university fees for the 1st grievant, gratuity, responsibility and acting allowances, and losses from the Respondent's late remittance of provident fund contributions. The matter followed conciliation under the Labour Relations Act 2007 after which the Claimant filed suit. The Respondent admitted employment but contended the grievants were employed before the applicable CBA, that gratuity was excluded because both were members of a registered provident fund scheme under Section 35(6) of the Employment Act, that the 1st grievant's degree studies were not sponsored or advised by the Respondent, and that the 2nd grievant's deployments did not attract extra pay and his resignation cited personal reasons. Justice Hellen S. Wasilwa, after considering evidence and submissions, found the Claimant had not proved a policy on fee refund, that the grievants were members of the Respondent's provident fund and so barred from gratuity under Section 35(6), and that no documents were exhibited to support the remaining claims of responsibility allowances and other dues. The claim was found unmerited and dismissed in its entirety with no order as to costs.

Key legal issues

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01

Entitlement to refund of college/university fees

Holding

Claim fails for want of proof of any policy entitling refund.

Reasoning

The 1st grievant claimed a refund of fees for a Bachelor of Business Management degree undertaken while employed. The Claimant was required to prove an institutional policy on refund of fees but failed to point out any policy document to the Court, so the claim could not stand.

p. 3
02

Entitlement to gratuity

Holding

Not entitled, being members of a provident fund scheme.

Reasoning

The grievants were members of the Respondent's provident fund. Under Section 35(6) of the Employment Act, Section 35(5) on service pay/gratuity does not apply to members of a registered pension or provident fund scheme, excluding gratuity.

p. 3
03

Responsibility allowances and other dues

Holding

Claim not proved; no documents exhibited.

Reasoning

The Claimant alleged entitlements to responsibility allowances, acting allowances and unpaid dues but did not exhibit documents supporting them. In the absence of documentary proof, the Court found no basis to award these heads of claim.

p. 3

Legal principles established

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  • An employee who is a member of a registered pension or provident fund scheme is not entitled to payment of service gratuity under Section 35(5) of the Employment Act by virtue of Section 35(6).
  • A party asserting an entitlement to a benefit such as fee refund must produce the policy document evidencing it.

Court orders

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  1. 1.Dismissal of the claim
  2. 2.No order as to costs

Authorities

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Legislation

  • Labour Relations ActSections 57, 62(1), 65(1), 67, 69
  • Employment ActSection 35(5) and 35(6)
Jurisdiction invoked
Article 162(2)(a) of the Constitution establishing the Employment and Labour Relations Court (implied by filing under the Labour Relations Act 2007 after failed conciliation under Section 65(1))

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, "Kudheiha Workers v Board of Management of Christian Industrial Training Center [2018] KEELRC 1257 (KLR)", Case Analysis (2018). Cause No. 970 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1257/eng@2018-07-02

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