Samuel Tanui Kiptan v Inter Construction Co. Ltd & 4 others [2018] KEELRC 2574 (KLR)
The bottom line
#A Kenyan court dismissed a dismissed driver's claims because his employment contract had no fixed end date and his alleged salary increase was never put in writing.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of the summary dismissal
Although the dismissal was for intoxication, a ground permitted under section 44(4), the process breached section 41(2) because the claimant was not accompanied by a person of his choice; this was the only lapse by the respondent.
The court read section 44(4) with section 41(2). The claimant attended a disciplinary panel on 5th April 2016, but all panel members (chairman, secretary and complainant) were employer representatives and no person chosen by the claimant was present. Despite this lapse, the claimant never sought compensation for unfair termination, and his fixed-term claim failed because the contract had no end date, so the suit failed overall.
Alleged contractual variation (salary increase and fixed term)
No evidence of a variation under section 13; the applicable gross wage was Kshs.34,416.08 but the alleged increments and unserved 7-month term were not proved.
Section 13 obliges an employer to issue a written statement of changes where particulars change. Absent any written variation, the contract must be read as issued and he who alleges an implied term must prove it. The pay statement showed a gross wage of Kshs.34,416.08, but no document supported the alleged instalments of Kshs.15,000.00 or a fixed term of 7 months, so those claims failed.
Recovery of unremitted NSSF and NHIF deductions
The claimant could not be paid the deducted amounts; these are statutory payments due to the requisite bodies.
The court held that deductions made for NSSF and NHIF belong to the statutory bodies, not the employee. Where an employer fails to remit, the employee's remedy is limited to a claim for service pay, not a refund of the deducted sums. This head of claim therefore failed as a matter of law.
Terminal dues and clearance
Terminal dues remain payable only upon the claimant clearing with the employer as directed in the dismissal letter.
The summary dismissal letter of 26th August 2016 directed the claimant to clear with the employer, upon which any terminal dues would be computed and payable. The court treated clearance as imperative for the claimant to receive his terminal dues, leaving that administrative step open to the parties notwithstanding dismissal of the claim.
Legal principles established
#- Summary dismissal for intoxication under section 44(4) must be read together with section 41(2), which requires the employer to hear and consider the employee's representations and allow them to be accompanied by a person of their choice.
- Where the parties are all representatives of the employer and the employee has no person of his choice present at a disciplinary hearing, section 41(2) of the Employment Act is breached.
- Where an employment contract is not varied or changed, the issued contract must be interpreted on its own terms and he who alleges an implied variation must prove it.
- Statutory deductions (NSSF/NHIF) not remitted cannot be claimed by the employee as payment; the employee's remedy is limited to service pay.
Court orders
#- 1.The claims herein are dismissed for lack of merit
- 2.Each party shall bear own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment and labour relations disputes (Employment Act, 2007 and the ELRC's established mandate); no specific constitutional article invoked in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samuel Tanui Kiptan v Inter Construction Co. Ltd & 4 others [2018] KEELRC 2574 (KLR)", Case Analysis (2018). Cause No. 69 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2574/eng@2018-07-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.