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ELRCAllowedCause No 2134 of 2015· [2018] KEELRC 2501 (KLR)

Electine Merina Bwire & another v Krystalline Salt Limited [2018] KEELRC 2501 (KLR)

Employment and Labour Relations Court
19 January 2018
790 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed employers may deduct statutory taxes from Employment Act settlement payments, blocking an auctioneer's attempt to seize property.

What this practically means

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Executive summary

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The Applicant, an employer, moved the Court by Notice of Motion dated 2nd October 2017 seeking a permanent injunction restraining execution of warrants of attachment issued by the 2nd Respondent at the instance of the Claimant/1st Respondent, together with an order marking the matter as settled and costs. The dispute arose from a consent judgment filed on 4th July 2017 under which the Applicant was to pay the Claimant severance pay, three months' compensation, a balance owing and costs within 45 days. The Applicant forwarded a cheque of Kshs. 332,622, being the consent amount less Kshs. 121,125 in statutory deductions remitted to the Kenya Revenue Authority. The Claimant contended that the consent made no provision for statutory deductions and proceeded to execution for Kshs. 456,197, culminating in a proclamation notice. The court framed the question as whether the consent amount was subject to statutory deductions. Relying on section 49(2) of the Employment Act, which provides that payments under that section are subject to statutory deductions, and following Javan Were Mbango v H. Young & Co (EA) Ltd, the court held that the consent payments fell under section 49 and that the Applicant was obliged to deduct and remit the tax. The application succeeded and was allowed with costs to the 1st and 2nd Respondents.

Key legal issues

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01

Whether consent judgment payments were subject to statutory deductions

Holding

Yes. The consent set out specific payments under section 49 of the Employment Act, which are subject to statutory deductions, so the Applicant was entitled to deduct and remit the Kshs. 121,125 to the Kenya Revenue Authority.

Reasoning

The consent dated 28th June 2017 provided for severance pay, three months' compensation and a balance owing, all being payments under section 49 of the Employment Act. Section 49(2) expressly provides that any payments made under that section are subject to statutory deductions. The Applicant was therefore legally bound to deduct and remit the tax, and the shortfall of Kshs. 121,125 was properly accounted for by proof of remittance to the Kenya Revenue Authority.

p. 2
02

Whether execution could properly proceed after full settlement of the consent amount

Holding

No. Having received explanation and proof of the statutory remittances, the Respondents had no reason to proceed with execution, and the warrants of attachment were properly restrained.

Reasoning

The Applicant paid Kshs. 332,622 and provided proof of payment of Kshs. 121,125 to the Kenya Revenue Authority, accounting for the full consent amount less statutory deductions. The court, adopting the position in Javan Were Mbango v H. Young & Co (EA) Ltd, held that the employer was entitled to make deductions authorized by written law, leaving the Respondents without basis for execution.

p. 3

Legal principles established

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  • Payments under section 49(2) of the Employment Act are subject to statutory deductions, which the employer is legally obliged to make and remit to the relevant authority.
  • An employer is entitled to deduct any amount authorized by any written law for the time being in force.

Court orders

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  1. 1.A permanent injunction restraining the Claimant and the 2nd Respondent, their servants or agents, from executing the warrants of attachment issued to the 2nd Respondent against the Applicant
  2. 2.The matter to be marked as settled
  3. 3.The 1st and 2nd Respondents to pay the costs of the application

Authorities

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Legislation

  • Employment ActSection 49(2)

Cases cited (1)

  • Javan Were Mbango v H. Young & Co (EA) Ltd
    [2012] eKLR
Jurisdiction invoked
Inherent jurisdiction of the Employment and Labour Relations Court over a matter in which a consent judgment had been recorded; application by Notice of Motion under certificate of urgency

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, "Electine Merina Bwire & another v Krystalline Salt Limited [2018] KEELRC 2501 (KLR)", Case Analysis (2018). Cause No 2134 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2501/eng@2018-01-04

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