Bernard Mburi Mary v Nakuru County Assembly Service Board & another [2020] KEELRC 1632 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Credibility of the respondent's contract document
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
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.
Date of cessation of employment
Employment ceased on 8th May, 2015 upon the claimant's voluntary resignation
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.
Quantum of unpaid wages
Twelve months of unpaid wages at Ksh.30,000 less post-employment payments of Ksh.36,800, leaving Ksh.323,200 due
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.
General damages for unfair labour practices
Claim refused for want of pleading and evidential support
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.
Legal principles established
#- 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
#- 1.Judgment entered for the claimant against the respondents jointly and severally for payment of due salaries amounting to Kshs. 323,200
- 2.Claimant awarded 50% of due costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and the Labour Institutions Act (original employment claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.