Alexander Oduor Oboya v Catholic Diocese of Nakuru [2020] KEELRC 1733 (KLR)
The bottom line
#The Employment Court dismissed a worker's claims for underpayment, gratuity and unpaid salary because the employer's payment records and NSSF remittances proved compliance with the law.
What this practically means
#Executive summary
#Key legal issues
#Underpayment contrary to wage orders
The claimant was not underpaid; the unchallenged work records and payment vouchers showed wages paid were in line with the applicable wage orders.
The respondent filed work records and payment vouchers covering the duration of service, which were not challenged by the claimant. Assessed against the applicable wage orders for a general worker, the wages paid did not fall below the prescribed minima. The claim for underpayments of Ksh.183,406.70 therefore failed on the documentary evidence.
Gratuity/service pay
The gratuity claim failed because the respondent remitted statutory dues to NSSF and NHIF as required by section 35 of the Employment Act, 2007.
Gratuity is normally due under a written contract or private treaty. Even if the claimant's claim were treated as one for service pay, the payment vouchers showed statutory deductions remitted to NSSF and NHIF. Compliance with section 35 of the Employment Act, 2007 disentitles an employee to service pay, so the claim was without merit.
Unpaid salary for July and August 2014
No salary was owed for July or August 2014; the claimant's early retirement was accepted and the July 2014 wage was included in the final dues paid.
The claimant tendered his resignation/letter of early retirement which was accepted by the respondent. Upon the lapse of the 30-day notice he was not required to attend work. The final dues paid included the wage due in July 2014, and keeping him in employment after acceptance of his retirement would amount to servitude. The claims for July and August 2014 salaries therefore failed.
Legal principles established
#- Where an employer has complied with section 35 of the Employment Act, 2007 by remitting statutory dues (NSSF and NHIF), a claim for service pay or gratuity fails.
- An employer has no obligation to retain an employee who has applied for and been granted early retirement; such retention would amount to servitude.
Court orders
#- 1.The claims made are found without merit and are hereby dismissed
- 2.Each party shall bear own costs
- Jurisdiction invoked
- Employment and labour relations jurisdiction of the Employment and Labour Relations Court (Cause referred under the Employment Act, 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Alexander Oduor Oboya v Catholic Diocese of Nakuru [2020] KEELRC 1733 (KLR)", Case Analysis (2020). Cause No. 521 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1733/eng@2020-01-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.