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ELRCDismissedCause No. 291 of 2010 (as cited in judgment; judgment does not state its own cause number)· [2019] KEELRC 2134 (KLR)

Kenya Union of Domestic, Hotels Educational Institutions, Hospitals & Allied Workers v Gathugu Secondary School [2019] KEELRC 2134 (KLR)

Employment and Labour Relations Court
18 February 2019
NMNzioki wa MakauRSRadido Stephen
603 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~2 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed an employee's claim for unpaid leave and allowances because neither the collective agreement nor proof of non-payment was provided.

What this practically means

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Executive summary

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The Claimant union sued the Respondent school on behalf of its Grievant, Ruth Njeri Mbugua, a former accounts clerk. The Grievant claimed annual leave for 16 years (Kshs. 201,600), travelling allowance for 5 years (Kshs. 20,000), pro rata leave for 3 months (Kshs. 3,150), pro rata travelling allowance (Kshs. 1,000) and an unpaid balance of Kshs. 7,950. She averred she resigned on 31st December 2010 after being re-designated as a general clerk, duties alien to an accounts clerk. The Respondent denied the claims, asserting the Grievant took her leave, was paid all dues (acknowledged by signature on 21st September 2011), and resigned of her own volition. The Grievant testified she was not paid her dues; the Respondent's Principal, John Maina Murage, testified the deployment was normal, benefits were fully paid, and there was no remittance on the Grievant's behalf. In submissions, the Claimant relied on a recognition agreement and a CBA, citing Kudheiha Workers v Murang'a High School, while the Respondent argued the Grievant's union membership was not proved and that she resigned voluntarily. The court found it could not access the CBA said to be in force as none was availed, the conciliator did not enumerate the sums sought, and there was no proof of non-payment of the leave and allowance claims. The suit was dismissed with no order as to costs.

Key legal issues

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01

Entitlement to CBA benefits

Holding

The claim fails because the CBA said to be in force was not availed to the court and no proof of non-payment was adduced

Reasoning

The Claimant asserted a CBA was in force applying to the Respondent, but no copy was availed, so the court could not verify the entitlements claimed. The Grievant testified she was paid less Kshs. 7,950, but the conciliator's report did not enumerate the sums sought and no proof of non-payment of leave and allowance claims was adduced. In the absence of proof, the sums could not be said to fall due.

p. 2
02

Resignation upon redeployment

Holding

The Grievant resigned of her own volition after declining redeployment, and this did not ground the remedies sought

Reasoning

The Grievant testified that the effect of deployment to general clerk duties, involving typing alien to an accounts clerk, led to her resignation on 31st December 2010. The Respondent's witness testified she declined deployment and wrote a resignation letter, and that her dues were paid in full and acknowledged on 21st September 2011. The court found the suit devoid of merit.

p. 2

Legal principles established

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  • A party claiming entitlement under a CBA must place the CBA before the court and prove non-payment of the sums claimed

Court orders

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  1. 1.The suit is dismissed
  2. 2.No order as to costs

Authorities

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Cases cited (1)

  • Kudheiha Workers v Murang'a High School
    Cause No. 291 of 2010 (unreported)
Jurisdiction invoked
Original employment and labour relations jurisdiction (Employment and Labour Relations Court); no specific provision cited in judgment

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, "Kenya Union of Domestic, Hotels Educational Institutions, Hospitals & Allied Workers v Gathugu Secondary School [2019] KEELRC 2134 (KLR)", Case Analysis (2019). Cause No. 291 of 2010 (as cited in judgment; judgment does not state its own cause number). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2134/eng@2019-02-20

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