Amoz Waweru Gatune v Specialized Fibreglass Limited [2020] KEELRC 1232 (KLR)
The bottom line
#A Kenyan employer without a written contract lost a Kshs.556,600 house allowance claim because it could not prove salary included rent, though NSSF membership blocked gratuity.
What this practically means
#Executive summary
#Key legal issues
#Entitlement to gratuity/service pay on resignation after long service
Gratuity refused; service pay under section 35(5) of the Employment Act is excluded for NSSF members
There was no written contract, so the burden of proving alleged terms fell on the employer under section 10(7). The Claimant admitted being an NSSF member. Section 35(6) expressly excludes NSSF members from the service pay scheme, and no express contractual gratuity term was proved.
Entitlement to house allowance where salary allegedly consolidated
House allowance awarded at 15% of basic salary for the last 3 years only (Kshs.561,600), the remainder being time barred
Section 31(1) obliges the employer to provide housing or pay rent in addition to salary; the consolidation exception in section 31(2) applies only where the contract contains a consolidation provision. The employer, bearing the burden under section 10(7), could not prove such a provision.
The Respondent's counter-claim for competing business, refund of salary and copyright infringement
Counter-claim dismissed; only the Kshs.5,000 Safaricom bill allowed as a set-off
The Respondent produced no evidence that the registered company transacted business to its detriment, the nature of the company's business was unexplained, and RW1 admitted there was no express contractual prohibition. No document proving ownership or existence of the alleged copyright was produced.
Ownership of the Safaricom line 0722862202
Prayer allowed; the line should revert to the Claimant who was the original subscriber
The Claimant showed he was the subscriber of the line and only changed it to the Respondent's name for billing purposes, so it should revert to him if he so wills.
Legal principles established
#- Where an employer fails to produce a written contract, the burden of proving or disproving an alleged term of employment lies on the employer
- Service pay under section 35(5) of the Employment Act is not payable to an employee who is a member of NSSF
- House allowance under section 31 of the Employment Act is payable unless the contract consolidates a rent element in the basic wage, a fact the employer must prove
Court orders
#- 1.The Respondent to pay the Claimant house allowance of Kshs.561,600 less Kshs.5,000 paid to Safaricom, leaving Kshs.556,600
- 2.The prayer that the Safaricom line 0722862202 revert to the Claimant is allowed
- 3.The Respondent to pay costs of the suit plus interest at court rates from the date of the judgment
- 4.The Respondent's counter-claim is dismissed
- Jurisdiction invoked
- Jurisdiction of the Employment and Labour Relations Court over the claim and counter-claim, contended to be preserved where matters are intricately interwoven with a labour issue
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Amoz Waweru Gatune v Specialized Fibreglass Limited [2020] KEELRC 1232 (KLR)", Case Analysis (2020). Cause No 1307 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1232/eng@2020-04-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.