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ELRCDismissedMemorandum of Claim dated 28th July 2015, amended 27th January 2016· [2019] KEELRC 164 (KLR)

Edward Rashid Makore v Rift Valley Railways (K) Limited [2019] KEELRC 164 (KLR)

Employment and Labour Relations Court
5 December 2019
LNLinnet Ndolo
1,203 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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An employee claiming his severance pay was miscalculated lost because he had no documents proving the correct figure.

What this practically means

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Executive summary

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The Claimant, Edward Rashid Makore, worked for Kenya Railways Corporation from 1996 until November 2006, when his services were transferred to Rift Valley Railways (K) Limited pursuant to a Concession Agreement following KRC's concession. He worked for RVR until 29th October 2014, when his employment was terminated on account of redundancy. He claimed the redundancy was unlawful and that his terminal dues were underpaid, pleading severance pay for 20 years at his last monthly salary of Kshs. 47,159.70, less amounts paid, plus compensation for unfair redundancy, totalling Kshs. 1,243,060, with costs and interest. The Respondent filed a Statement of Response asserting that the redundancy followed automation of its operations (installation of an Operations Control Centre and On-Board Computers), that it complied with the law, the CBA and the Concession Agreement, and that the Claimant acknowledged the sums paid as correct. The Respondent did not participate in the trial despite due notification. At trial, the Claimant testified that his only issue was the monthly salary factor used to compute severance pay for his KRC service, contending his RVR last salary should have applied. The court found the retrenchment letter did not address this issue and the Concession Agreement containing the transfer terms was not availed. Holding the assertion unsupported by evidence, the court dismissed the claim with no order for costs, on 5th December 2019 at Mombasa.

Key legal issues

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Whether the Respondent used the wrong monthly salary factor in computing severance pay for the Claimant's KRC service

Holding

The claim was not proved; the retrenchment letter did not address the issue and the Concession Agreement was not produced, leaving the Claimant's assertion unsupported

Reasoning

At trial the Claimant narrowed his claim to the monthly salary factor used in tabulating severance pay for his KRC service, contending that his last salary at RVR (Kshs. 47,159.70) should have been used. The court noted the retrenchment letter did not address this issue and the Concession Agreement containing transfer terms was not availed. Without documentary evidence of the correct computation basis, the assertion of miscalculation failed and the claim was dismissed.

p. 3

Legal principles established

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  • A party alleging miscalculation of terminal dues bears the burden of proving the error; where the Concession Agreement governing transfer of services is not availed, the assertion cannot be sustained

Court orders

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  1. 1.The Claimant's claim is dismissed
  2. 2.No order for costs

Authorities

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Legislation

  • Employment Act2007
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (employment dispute over redundancy and terminal dues)

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, "Edward Rashid Makore v Rift Valley Railways (K) Limited [2019] KEELRC 164 (KLR)", Case Analysis (2019). Memorandum of Claim dated 28th July 2015, amended 27th January 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/164/eng@2019-12-05

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