Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedCause No. 21 of 2018· [2018] KEELRC 1431 (KLR)

Boniface Momanyi Nyachae v Kenya Orient Insurance Ltd [2018] KEELRC 1431 (KLR)

Employment and Labour Relations Court of Kenya at Kericho
23 July 2018
DMD. K. Njagi Marete
2,156 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

An employee claiming discrimination or unpaid dues in Kenya must bring evidence and complete employer exit procedures — otherwise the claim collapses.

What this practically means

#

Executive summary

#
The claimant, formerly employed by the respondent as Assistant Legal Officer from a letter of appointment dated 16th March 2016, resigned in August 2016 and brought an Amended Memorandum of Claim alleging withholding of final benefits and discrimination on grounds of sex and social origin contrary to Articles 27, 28 and 41 of the Constitution. He claimed a liquidated sum of Kshs.218,458 (August salary, salary in lieu of notice, unlawful deductions, allegedly withheld salary for May to July and unpaid leave days), a certificate of service, general and punitive damages for discrimination, costs and interest. He alleged he was underpaid relative to female colleagues and other legal officers. The respondent denied all allegations, asserting an agreed salary of Kshs.50,000, that the April 2016 payment of Kshs.75,806 was a computational error, that pay was banded by rank and length of service, and that no female colleague existed at his level. The matter proceeded by written submissions. The court framed four issues: discrimination, withholding of terminal dues, entitlement to relief, and costs. Applying section 107 of the Evidence Act, the court held the burden of proving discrimination lay on the claimant, who adduced no evidence, and the claim was superfluous. On terminal dues, the claimant failed to complete clearance and exit procedures, so nothing was withheld; the certificate of service claim failed for the same reason. Having lost on the salient basis of the claim, he was disentitled to relief. The claim was dismissed with each party bearing their own costs, delivered on 23rd July 2018.

Key legal issues

#
01

Discrimination on grounds of sex and social origin

Holding

The claim of discrimination failed for want of proof; the burden lay on the claimant and was not discharged

Reasoning

The court held that the claimant asserted discrimination based on sex and social origin but adduced no evidence to support it. Applying section 107 of the Evidence Act, the burden was on him to prove the facts asserted. The respondent explained the salary differential by rank, salary band and length of service, and denied any female colleague existed at his level. The claim was therefore superfluous.

p. 4
02

Withholding of terminal dues

Holding

No terminal dues were withheld; the claimant failed to complete clearance and exit procedures, so the claim failed

Reasoning

The respondent showed the claimant resigned on 18th August 2016, was required to complete a staff exit form and clearance, and failed to do so. On the respondent's computation, dues subject to taxes and statutory deductions would yield a negative net balance. The claimant's own non-compliance caused the non-payment, so neither the dues claim nor the certificate of service claim could succeed.

p. 4
03

Entitlement to relief sought

Holding

The claimant was disentitled to all relief, having lost on the salient basis of his claim

Reasoning

Having failed to prove discrimination, which was the principal basis of the claim, and having failed to establish withheld terminal dues, the claimant was not entitled to any of the reliefs sought, including the liquidated claim of Kshs.218,458, general damages, certificate of service, costs and interest.

p. 4

Legal principles established

#
  • He who asserts, not he who denies, must prove - the burden of proving discrimination lies on the claimant
  • A party seeking payment of terminal dues must comply with the employer's procedural clearance requirements before resorting to court

Court orders

#
  1. 1.The claim is dismissed
  2. 2.Each party bears their own costs of the claim

Authorities

#

Legislation

  • Constitution of Kenya, 2010Article 27
  • Constitution of Kenya, 2010Article 28
  • Constitution of Kenya, 2010Article 41
  • Employment Act, Cap 226Section 5(3), (5) and (6)
  • Employment Act, Cap 226Section 25
  • Employment Act, Cap 226Section 51
  • Evidence Act, Chapter 80, Laws of KenyaSection 107
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act cap 226 and Constitution Articles 27, 28 and 41 as pleaded

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (3)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Boniface Momanyi Nyachae v Kenya Orient Insurance Ltd [2018] KEELRC 1431 (KLR)", Case Analysis (2018). Cause No. 21 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1431/eng@2018-07-23

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