Gabriel Mutuku Mbobu v Independent Communications Associates [2018] KEELRC 2478 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Entitlement to unpaid leave for 21 ½ days
Claim allowed in the sum of Kshs. 50,172.40
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.
Entitlement to service pay despite NSSF membership
Claim dismissed
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.
Legal principles established
#- 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
#- 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.The said amount to attract interest at court rates from the date of filing suit until payment in full
- 3.The Claimant awarded the costs of the case
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.