Transport Workers Union (K) v Malewa T – Junction Service Station [2019] KEELRC 1465 (KLR)
The bottom line
#A Kenyan court awarded a petrol station attendant unpaid wages but threw out most claims because neither side brought evidence to prove them.
What this practically means
#Executive summary
#Key legal issues
#Underpayment of wages
The Grievant was underpaid Kshs 30,001/- for 19 months relative to the statutory minimum wage of Kshs 9,679/05 under Legal Notice No. 197 of 2013
The Grievant was paid Kshs 8,100/- per month while the applicable minimum wage for a petrol station attendant in Gilgil under Legal Notice No. 197 of 2013 was Kshs 9,679/05, producing an underpayment of Kshs 1,579/05 monthly over 19 months. House allowance was excluded for want of evidence of the computation rate.
Leave entitlement
Claim for leave pay failed as unproved
Although leave pay of Kshs 58,980/- was pleaded for 6 years of service, Section 28(4) of the Employment Act limits carried-forward leave to 18 months, and there was no evidence that leave was sought and declined or carried forward with the employer's approval.
Wages for November 2014
Granted as pleaded since the Respondent's witness statements did not respond to the wage plea
The Union sought Kshs 8,425/80 being wages up to 18 November 2014, the pleaded date of separation. The Respondent's witness statements did not contest this plea, so the Court found for the Grievant as pleaded.
Unfair termination
Claim failed; the Court could not determine unfair termination due to the parties' failure to lead evidence
The Memorandum of Claim and witness statement stated separation on 18 November 2014, while the Certificate of Service and the Respondent's witness statements stated 10 December 2014. The parties chose not to call witnesses to resolve this dispute, leaving the Court unable to establish the truth about the date and circumstances of termination.
Counterclaim
Counterclaim failed in its entirety
The pay in lieu of notice head failed for want of evidence despite contradictory statements on record. The Kshs 33,582/- claim was special damages requiring specific proof, and the Respondent led no evidence to prove it.
Legal principles established
#- Witness statements not adopted under oath have no probative value as evidence
- Parties relying on the record rather than oral evidence should file affidavits rather than witness statements
- Leave that can be carried forward is limited to 18 months under Section 28(4) of the Employment Act
- A claim for unaccounted-for funds is in the nature of special damages and must be specifically proved
Court orders
#- 1.Judgment entered for the Grievant in the sum of Kshs 38,426/80 comprising underpayments of Kshs 30,001/- and wages for November 2014 of Kshs 8,425/80
- 2.Dismissal of the unfair termination head of claim
- 3.Dismissal of the leave claim
- 4.Dismissal of the severance pay claim
- 5.Dismissal of the Respondent's Counterclaim in its entirety
- 6.Each party to bear own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over a referral of a trade dispute (unfair termination and terminal benefits of a grievant); no specific constitutional provision cited
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Transport Workers Union (K) v Malewa T – Junction Service Station [2019] KEELRC 1465 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1465/eng@2019-05-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.