Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedEmployment Cause (number not stated in judgment)· [2019] KEELRC 1688 (KLR)

Denis Kimatu Wathome v Harshiv Auto Spares [2019] KEELRC 1688 (KLR)

Employment and Labour Relations Court
30 April 2019
2,731 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

A Kenyan court awarded a resigned employee service pay, leave and rest day dues, but refused overtime because he had no proof of hours worked.

What this practically means

#

Executive summary

#
The Claimant, Denis Kimatu Wathome, sued Harshiv Auto Spares for terminal dues of Kshs. 461,500 arising from employment he said began on 23/09/2010 as a driver earning Kshs. 15,000 monthly, ending on 11/08/2014 when he resigned. The Respondent denied employing him as a driver, asserted he was a store keeper engaged from March 2012 who voluntarily ended the employment, and relied on a conciliation settlement of Kshs. 26,000 brokered through the Transport Workers Union of Kenya and the Ministry of Labour, further claiming a Kshs. 22,000 loan set-off. The court framed three issues: limitation, whether the termination was unlawful, and entitlement to remedies. It held the claim was filed within the three-year period under section 90 of the Employment Act and was not time barred. On the resignation, the court found the letter cited only unexplained 'circumstances' and made no reference to difficult working conditions, so the constructive dismissal plea was an afterthought and the Claimant resigned voluntarily. On remedies, the court found no proof of NSSF or provident fund membership and awarded service pay of Kshs. 22,500 (15 days' salary per year for 3 years), leave pay for 3 years of Kshs. 45,000, and one rest day per week of Kshs. 26,000, totalling Kshs. 93,500. Overtime was refused for want of proof and August 2014 wages were denied because the Claimant gave no notice before resigning. The court ordered issuance of a Certificate of Service, with costs to the Claimant and interest at court rates from the date of judgment. Judgment delivered by Hellen Wasilwa, J on 30 April 2019.

Key legal issues

#
01

Limitation of the claim

Holding

The claim filed on 18/4/2015 for employment ending 11/8/2014 was within the 3-year period under section 90 of the Employment Act and was therefore not time barred

Reasoning

The court computed the period between the date the Claimant left employment (11 August 2014) and the date of filing (18 April 2015) and found it fell well within the 3-year limitation period prescribed by section 90 of the Employment Act, rejecting the Respondent's limitation defence.

p. 4
02

Whether the Claimant was constructively or unfairly terminated

Holding

No unfair termination arose; the Claimant resigned voluntarily and his constructive dismissal plea was an afterthought

Reasoning

The Claimant wrote a resignation letter citing only unexplained 'circumstances'. The letter made no reference to difficult working conditions or any conduct by the Respondent. Although he argued constructive dismissal in submissions relying on Potter v New Brunswick Legal Aid Services Commission, the court held the difficult-conditions narrative was never communicated at the time and amounted to an afterthought.

p. 4
03

Entitlement to service pay

Holding

Service pay of 15 days' salary per year worked (Kshs. 22,500 for 3 years) awarded because there was no proof of NSSF or provident fund membership

Reasoning

Section 35(6) of the Employment Act excludes service pay for members of NSSF, a registered pension or provident fund, a gratuity or service pay scheme under a collective agreement, or a more favourable employer scheme. The court found no indication the Claimant was a member of NSSF or a provident fund, despite the Respondent's assertion, and applied the 15 days per year formula over 3 years.

p. 4
04

Annual leave, overtime and rest day claims

Holding

Leave for 3 years (Kshs. 45,000) and one rest day per week (Kshs. 26,000) awarded; overtime refused for want of proof

Reasoning

The court awarded leave pay for 3 years at a month's salary per year. On the rest day claim it awarded one day's rest per week computed at 52 days' pay. The overtime claim failed because the Claimant could not demonstrate the duration of overtime worked, consistent with the burden of proof principle relied on by the Respondent from Nduta Mbite v John Gachau Gitonga.

p. 4

Legal principles established

#
  • Claims under section 90 of the Employment Act must be filed within 3 years of the date employment ended; a claim filed within that period is not time barred
  • An employee is not entitled to service pay where the section 35(6) exclusions apply, but absent proof of membership of NSSF or a provident fund, service pay of 15 days' salary per year worked is payable
  • Constructive dismissal cannot be founded on circumstances never raised in the resignation letter; such a plea is treated as an afterthought

Court orders

#
  1. 1.Award of service pay of Kshs. 22,500/= (15 days' salary for each of 3 years worked)
  2. 2.Award of leave pay for 3 years of Kshs. 45,000/=
  3. 3.Award of one rest day per week of Kshs. 26,000/=
  4. 4.Total award of Kshs. 93,500/= to the Claimant
  5. 5.Issuance of a Certificate of Service to the Claimant
  6. 6.Costs of the suit to the Claimant with interest at court rates from the date of judgment

Authorities

#

Legislation

  • Employment ActSection 35(6)
  • Employment ActSection 90
  • Labour Relations ActPart VIII

Cases cited (5)

  • Potter v New Brunswick Legal Aid Services Commission
    2015 SCC 10
  • Kenya Plantation & Agricultural Workers Union v Maji Mazuri Flowers
    Industrial Cause 1365 of 2011
  • National Bank of Kenya Limited v Pipeplastic Samkolit (K) Limited
    Civil Appeal No. 95 of 1999
  • Miss Nduta Mbite v John Gachau Gitonga
    Civil Appeal No. 299 of 2015
  • Martin Ireri Ndwiga v Oleria Management Limited
    ELRC Case No. 725 of 2016
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over terminal dues and employment claims (Employment Act; Labour Relations Act provisions on conciliation invoked by parties)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Denis Kimatu Wathome v Harshiv Auto Spares [2019] KEELRC 1688 (KLR)", Case Analysis (2019). Employment Cause (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1688/eng@2019-04-30

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