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ELRCPartially AllowedCause No. 255 of 2016· [2020] KEELRC 1632 (KLR)

Bernard Mburi Mary v Nakuru County Assembly Service Board & another [2020] KEELRC 1632 (KLR)

Employment and Labour Relations Court of Kenya
6 February 2020
1,877 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The claimant, employed as ward manager for Malewa West Ward under a contract dated 1st July, 2013, sued the Nakuru County Assembly Service Board and the Ward Representative for unpaid wages, a declaration of continued employment, an order for remittance of NSSF and NHIF dues, and alternatively general damages for unfair termination. He claimed a monthly wage of Ksh.30,000 and arrears of 19 months totalling Ksh.650,000, alleging unfair labour practices arising from persistent non-payment. The respondents denied the claim, asserting the wage was Ksh.15,000, that the claimant received a Ksh.60,000 monthly allocation to run his office, and that he resigned voluntarily on 8th April, 2015 citing personal commitments and inadequate wages. The respondent's accountant admitted in cross-examination that paragraph c of the contract had been altered from Ksh.30,000 to Ksh.15,000 without counter-signature. The court condemned the tampering as criminal conduct and held the true wage to be Ksh.30,000. It found the claimant's employment ceased on 8th May, 2015 upon his voluntary resignation, so he could not be paid beyond that date. Computing 12 months of unpaid wages at Ksh.30,000 and deducting post-employment payments of Ksh.36,800, the court awarded Ksh.323,200 jointly and severally against the respondents, with 50% of due costs. The claims for general damages, continued employment and NSSF/NHIF remittance were refused, the latter being for a different forum under section 35 of the Employment Act.

Key legal issues

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01

Credibility of the respondent's contract document

Holding

The contract produced by the respondent was tampered with, changing the wage from Ksh.30,000 to Ksh.15,000; the court accepted the wage as Ksh.30,000 per month

Reasoning

The respondent's own accountant admitted in cross-examination that paragraph c of the contract was altered from Ksh.30,000 to Ksh.15,000 and that the correction was not counter-signed. The court observed that the handwriting altering the figures differed from that in other parts of the document, condemned the tampering as criminal conduct, and held the original wage to be Ksh.30,000.

p. 3
02

Date of cessation of employment

Holding

Employment ceased on 8th May, 2015 upon the claimant's voluntary resignation

Reasoning

The claimant's resignation letter of 8th April, 2015 giving personal commitments and inadequate wages as reasons was attached to the defence and was not materially challenged. Resignation being voluntary, the claimant could not claim to remain an employee or be paid beyond the resignation date.

p. 3
03

Quantum of unpaid wages

Holding

Twelve months of unpaid wages at Ksh.30,000 less post-employment payments of Ksh.36,800, leaving Ksh.323,200 due

Reasoning

Based on the contract sum and the bank statements, the court identified 12 months of unpaid wages (July to October 2013; September to December 2014; and January to April 2014) totalling Ksh.360,000, plus 8 days' wages to resignation. Payments of Ksh.9,200 made after employment ceased (totalling Ksh.36,800) were deducted, leaving Ksh.323,200.

p. 4
04

General damages for unfair labour practices

Holding

Claim refused for want of pleading and evidential support

Reasoning

The claimant resigned voluntarily citing personal commitments and inadequate wages. Had he been forced out by intolerable conditions, the proper route would be constructive dismissal, which must be specifically pleaded and proved. Neither the pleadings nor the evidence supported the general damages claim.

p. 4

Legal principles established

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  • A party who tampers with a contract document to reduce a wage figure cannot rely on that tampered document; the admitted original figure prevails
  • Resignation is a voluntary mode of termination of employment and ends the employment as at the resignation date
  • A claim of constructive dismissal must be pleaded and addressed in evidence before the court can assess and award on it
  • Non-remittance of statutory dues during employment is a matter for a different forum under section 35 of the Employment Act, 2007

Court orders

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  1. 1.Judgment entered for the claimant against the respondents jointly and severally for payment of due salaries amounting to Kshs. 323,200
  2. 2.Claimant awarded 50% of due costs

Authorities

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Legislation

  • County Government Actestablishment of County Assembly Service Board
  • Employment Act, 2007section 35

Cases cited (3)

  • Cheruiyot Kipkemoi Joel versus Tirgaga Tea Factory Company Limited
    [2017] eKLR
  • Robert Indiazi versus Tembo Sacco limited
    [2018] eKLR
  • Milton Isanya versus Aga Khan Hospital Kisumu
    [2017] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and the Labour Institutions Act (original employment claim)

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, "Bernard Mburi Mary v Nakuru County Assembly Service Board & another [2020] KEELRC 1632 (KLR)", Case Analysis (2020). Cause No. 255 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1632/eng@2020-02-06

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