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ELRCPartially Allowed· [2018] KEELRC 1679 (KLR)

Annie Kiragu v Somak Travel Ltd [2018] KEELRC 1679 (KLR)

Employment and Labour Relations Court
18 January 2018
1,427 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court awarded a redundant employee Kshs.3.45 million because her terminal dues were calculated using a salary lower than what her collective bargaining agreement prescribed.

What this practically means

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Executive summary

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The Claimant was employed on 16.7.1996 as a Customer Relations Officer cum Sales Agent and her services were terminated on 16.4.2014 on account of redundancy, upon which she was paid Kshs.487,422.47 (or Kshs.481,422.47 net of statutory deductions per the defence) as terminal dues. She sued for Kshs.4,302,449.65, contending the dues were computed on a salary lower than the Kshs.80,000 per month prescribed for her position under the CBA between the Respondent and the Kenya Gaming & Safari Workers Union. The Respondent maintained the redundancy was genuine due to declining business after cancellation of charter flights, and that the Claimant was a Tour Representative earning more than the CBA rate, so no underpayment occurred. The parties dispensed with oral hearing and the suit was disposed of on pleadings, witness statements, documents and written submissions. The court framed three issues: the Claimant's position, her rightful salary, and entitlement to relief. It found she was employed as Customer relations officer cum sales representative, a category paid Kshs.80,000 under the CBA, and that her terminal dues were therefore underpaid. The court reassessed the dues using the Kshs.80,000 salary from 1.7.2010 to 16.4.2014, awarding notice pay of Kshs.80,000, salary arrears of Kshs.2,135,679, severance of Kshs.1,206,153.85, leave of Kshs.30,769.25 and leave travelling allowance of Kshs.4,500, while declining the general wage order claim as compensated. Judgment was entered for the Claimant for Kshs.3,457,102.20 plus costs and interest from the date of filing suit, payable subject to the Kshs.481,422.47 already paid and statutory deductions.

Key legal issues

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01

Employment position held by the Claimant

Holding

The Claimant proved on a balance of probability that she was employed as Customer Relations Officer cum Sales Representative, a position squarely covered by the CBA category paid Kshs.80,000

Reasoning

Although initially appointed as Tour Representative, the job description matched the CBA category including Client Relations Officer and Sales Agent. The defence did not deny the allegation, and the defence witness's own certificate of service described the Claimant as Customer relations officer cum sales representative; correspondence also showed she served as Tour Leader doing sales duties.

p. 2
02

The Claimant's rightful salary

Holding

The Claimant's rightful salary from July 2010 was Kshs.80,000 per month as prescribed under the CBA for her position

Reasoning

The CBA for July 2012, which remained in force until another was registered, prescribed Kshs.80,000 for Fare man, Transport controller, Client Relations Officer, Safari Consultant, Air Part representative and Sales Agent. The Claimant's job description under the appointment letter placed her squarely in that category.

p. 3
03

Whether terminal dues were underpaid and reassessment

Holding

Terminal dues were underpaid as they were calculated on a lower salary; the court reassessed notice pay, salary arrears, severance and leave using the Kshs.80,000 CBA salary from 1.7.2010 to 16.4.2014

Reasoning

Having found the rightful salary, the court recalculated: one month salary in lieu of notice at Kshs.80,000; salary arrears of (80,000 - 33,062) x 45.5 months = Kshs.2,135,679; severance at 28 days per completed year (14 years) = Kshs.1,206,153.85; 10 days leave Kshs.30,769.25; and leave travelling allowance of Kshs.4,500, which was unopposed and lower than the CBA rate.

p. 3

Legal principles established

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  • Where terminal dues are computed on a salary lower than that prescribed by a CBA applicable to the employee's position, the dues are underpaid and the court will reassess them using the CBA salary
  • A CBA that came into effect after termination of employment is not applicable to the terminated employee

Court orders

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  1. 1.Judgment entered for the Claimant in the sum of Kshs.3,457,102.20
  2. 2.Award to be paid subject to the Kshs.481,422.47 already paid after the lay off and in addition to statutory deductions
  3. 3.Costs of the suit to the Claimant
  4. 4.Interest on the award from the date of filing suit
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (statutory basis not expressly cited in the 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, "Annie Kiragu v Somak Travel Ltd [2018] KEELRC 1679 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1679/eng@2018-02-22

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