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ELRCPartially AllowedCivil Suit No. 3420 of 2010 (transferred via High Court Miscellaneous Application No. 1105 of 2013)· [2018] KEELRC 2478 (KLR)

Gabriel Mutuku Mbobu v Independent Communications Associates [2018] KEELRC 2478 (KLR)

Employment and Labour Relations Court
9 February 2018
LNLinnet NdoloMOMaureen Onyango
782 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court awarded a former employee unpaid leave pay but refused service pay because he was a contributing NSSF member.

What this practically means

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Executive summary

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This claim, originally filed as Civil Suit No. 3420 of 2010 in the Senior Resident Magistrate's Court at Milimani and transferred to the Employment and Labour Relations Court by order of Ougo J in March 2013, was determined on written submissions by consent. The Claimant, employed by the Respondent from January 2005 until resigning on 31st March 2010 with one month's notice, claimed terminal dues: salary arrears, service pay and unpaid leave for 21 ½ days. He conceded receipt of Kshs. 332,328 in settlement of salary arrears, leaving service pay of Kshs. 166,269.10, leave pay of Kshs. 50,172.40, interest and costs in dispute. The court found the leave pay claim indisputable and allowed it. On service pay, the Respondent invoked Section 35(6)(d) of the Employment Act, 2007, arguing the Claimant was a contributing NSSF member. The court, applying Rika J's decision in Elijah Kipkoross Tonui, accepted that an employer who by conduct demonstrates it does not view NSSF as a serious social security mechanism cannot rely on the exclusion, but found no such evidence here. Relying on National Bank of Kenya v Pipeplastic Samklit, it declined to rewrite the parties' contract absent proof of coercion, fraud or undue influence, and dismissed the service pay claim. Judgment was entered for the Claimant for Kshs. 50,172.40 with interest at court rates from filing suit, plus costs.

Key legal issues

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01

Entitlement to unpaid leave for 21 ½ days

Holding

Claim allowed in the sum of Kshs. 50,172.40

Reasoning

There was evidence on record that at the time of leaving employment the Claimant had 21 ½ leave days to his credit. The court found the claim indisputable and allowed it in full, with interest at court rates from filing suit.

p. 2
02

Entitlement to service pay despite NSSF membership

Holding

Claim dismissed

Reasoning

Under Section 35(6)(d) of the Employment Act, 2007, a contributing NSSF member is excluded from service pay. The Tonui exception applies only where the employer's conduct shows it does not treat NSSF as a serious social security mechanism. No such evidence existed, and the contract made no provision for service pay; awarding it would rewrite the contract without proof of coercion, fraud or undue influence.

p. 2

Legal principles established

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  • An employer who, by conduct such as failure to consistently remit or update records, demonstrates that it does not view NSSF as a serious social security mechanism cannot rely on Section 35(6)(d) of the Employment Act to deny an employee service pay
  • A court can only rewrite a contract where coercion, fraud or undue influence have been proved

Court orders

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  1. 1.Judgment entered in favour of the Claimant in the sum of Kshs. 50,172.40, being leave pay for 21 ½ days earned in 2009 and 2010
  2. 2.The said amount to attract interest at court rates from the date of filing suit until payment in full
  3. 3.The Claimant awarded the costs of the case

Authorities

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Legislation

  • Employment Act, 2007Section 35(6)(d)

Cases cited (2)

  • Elijah Kipkoross Tonui v Ngara Opticians T/A Bright Eyes Limited
    [2014] eKLR
  • National Bank of Kenya Ltd v Pipeplastic Samklit (K) Ltd & another
    [2001] eKLR
On appeal from
Senior Resident Magistrate's Court at Milimani, Nairobi
Civil Suit No. 3420 of 2010
Jurisdiction invoked
Transfer to the Employment and Labour Relations Court pursuant to High Court Miscellaneous Application No. 1105 of 2013 (order of Ougo J dated 14th March 2013)

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, "Gabriel Mutuku Mbobu v Independent Communications Associates [2018] KEELRC 2478 (KLR)", Case Analysis (2018). Civil Suit No. 3420 of 2010 (transferred via High Court Miscellaneous Application No. 1105 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2478/eng@2018-01-09

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