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ELRCDismissedNot stated in the judgment as provided (memorandum of claim dated 26th September 2013, amended 29th January 2014)· [2018] KEELRC 1446 (KLR)

Phoebe Adhiambo Bondo v Green Forest Social Investments Limited [2018] KEELRC 1446 (KLR)

Employment and Labour Relations Court of Kenya
12 July 2018
MOMaureen OnyangoMNMathews Nderi Nduma
2,815 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan employee who took on extra duties lost her claim for an allowance and bonus because her contract never promised them and she had declined the bonus in writing.

What this practically means

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Executive summary

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The claimant, formerly General Manager Micro Finance with the respondent from 23rd November 2009 until her resignation/retrenchment in March 2013, sued for benefits she said accrued from taking on additional duties of General Manager Support Services and Human Resource after a March 2012 restructuring. She sought an additional responsibility allowance of 50% of basic pay (Kshs.1,593,558.00), a discretionary bonus of Kshs.265,593.00, and severance, service pay and house allowance, totalling Kshs.3,520,675.00 plus costs and interest. The respondent denied liability, relying on Article 17 of its HR Manual which excluded managers in job group G from acting allowances, contending the discretionary bonus was an offer in good faith which the claimant declined, and that all terminal dues were paid. The court found no dispute of fact and framed the issue as whether the claimant proved entitlement to the sums claimed. On the responsibility allowance, the court held that the Harrison email relied on concerned a junior employee's salary revision and was no precedent, and that the claimant never raised the allowance during employment. On the bonus, her written rejection of the conditional offer estopped her claim. The severance/service pay/house allowance head failed for want of quantification and evidence. The entire claim was dismissed with no orders as to costs.

Key legal issues

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01

Entitlement to responsibility allowance for additional duties

Holding

The claim for responsibility allowance failed; the allowance was not in the claimant's terms of service and the Harrison email was not a proper precedent

Reasoning

The court held that the email from the General Manager related to a junior employee, Harrison, whose salary was revised to Kshs.30,000 inclusive of housing, equating him to an electrician, storekeeper and mechanic - hardly a precedent for a General Manager. The claimant performed the extra duties for a year but never raised the allowance issue during employment or when claiming terminal benefits. The court found the allowance unproved and dismissed that head of claim.

p. 4
02

Discretionary bonus offered and rejected

Holding

The claim for the discretionary bonus was dismissed; rejection of the offer estopped the claimant

Reasoning

The bonus offer was conditional and made in good faith. The claimant wrote declining it 'due to personal reasons' and admitted in testimony that it was not an obligation on the respondent. Having rejected the offer, she could not turn around and sue on it. No legal or contractual obligation to pay arose, and her change of mind was an afterthought.

p. 5
03

Severance pay, service pay and house allowance

Holding

This head of claim was dismissed for want of proof

Reasoning

The claimant did not assign any figure to this prayer or explain the basis of the claim, and did not refer to it in her testimony. The respondent submitted that severance pay is only payable in cases of redundancy, citing Masoud Noorani v General Tyre Sales Ltd. Absent any evidence or quantification, the claim was unproved and dismissed.

p. 5

Legal principles established

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  • A discretionary bonus offered in good faith but declined by the employee creates no contractual obligation and the employee is estopped from claiming it
  • A claimant bears the burden of proving entitlement to employment benefits not provided for in the contract or HR manual

Court orders

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  1. 1.The entire claim is dismissed
  2. 2.No orders for costs

Authorities

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Legislation

  • Constitution of KenyaArticle 41
  • Employment Act2007 (Part 3 referenced)
  • Evidence ActSection 107 (Cap 80, Laws of Kenya)

Cases cited (2)

  • R v Kenya Airports Authority & Anor ex parte Moses Echwas
    Misc. Civil Application No. 24 of 2014
  • Masoud Noorani vs General Tyre Sales Ltd
    Civil Appeal No. 26 of 2015
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Constitution (Article 41 fair labour practice invoked by the claimant) and 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, "Phoebe Adhiambo Bondo v Green Forest Social Investments Limited [2018] KEELRC 1446 (KLR)", Case Analysis (2018). Not stated in the judgment as provided (memorandum of claim dated 26th September 2013, amended 29th January 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1446/eng@2018-07-12

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