Joseph Jaoko Olwal v Agroline Hauliers Limited [2019] KEELRC 541 (KLR)
The bottom line
#A Kenyan court awarded a retrenched driver unpaid house allowance and gratuity because his employer kept no pension scheme and never paid housing allowance.
What this practically means
#Executive summary
#Key legal issues
#Entitlement to extra one month's notice pay
Claim dismissed; claimant was paid two months' salary in lieu of notice per clause 9(b) of the CBA
Clause 9(b) of the CBA entitled employees with a minimum of six consecutive years of service to two months' notice or payment of two months' salary in lieu. The respondent paid the claimant two months' notice pay at redundancy. Having received the full contractual entitlement, the claim for a further month was misconceived.
House allowance at 15% of basic salary
Claim proved and awarded at Kshs. 140,162.4
Clause 20 of the CBA entitled unhoused employees to a housing allowance at 15% of basic pay. Pay slips produced by both parties showed no house allowance was paid. The claimant testified he was not housed for six years. The respondent failed to rebut the claim, so the claimant proved his entitlement on a balance of probabilities.
Pension dues/gratuity
Gratuity awarded under Section 35(5) of the Employment Act at 15% of basic salary for six years, Kshs. 140,162.4
The pay slips showed no NSSF deductions, and the respondent produced no evidence that it operated any pension fund. Under Section 35(5) of the Employment Act, an employer providing no pension must pay gratuity on termination. The court therefore awarded gratuity at 15% of basic salary for each completed year of service.
Legal principles established
#- Under Section 35(5) of the Employment Act, an employer who does not provide any form of pension to an employee must pay gratuity upon termination of employment
Court orders
#- 1.Housing allowance calculated at 15% of the basic salary for six years in the sum of Kshs 140,162.4
- 2.Gratuity calculated at 15% of the basic salary for six years in the sum of Kshs. 140,162.4
- 3.Total award Kshs. 280,324.8
- 4.Interest at court rates from date of filing suit till payment in full
- 5.Costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment dispute; reliefs premised on the CBA and the Employment Act (Section 35(5))
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Jaoko Olwal v Agroline Hauliers Limited [2019] KEELRC 541 (KLR)", Case Analysis (2019). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/541/eng@2019-10-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.