Nicholas Chunguli Kaduka v Kakamega Millenium Diesel Works [2020] KEELRC 1764 (KLR)
The bottom line
#A Kenyan worker won Ksh.152,224 in unpaid wages and leave pay because his employer kept no employment records, though his unfair termination claim failed.
What this practically means
#Executive summary
#Key legal issues
#Validity of the Verifying Affidavit under Rule 4(2) of the ELRC Procedure Rules, 2016
The claim is not defective; the record showed the Verifying Affidavit was duly commissioned by an Advocate and Commissioner for Oaths
The respondent alleged the Verifying Affidavit was not commissioned, rendering the claim defective under Rule 4(2). The court examined the record and found the Memorandum of Claim filed on 29th March 2017 was supported by a Verifying Affidavit commissioned on 23rd March 2017 by Nyamwange Caleb Bichang'a, Advocate & Commissioner for Oaths. The suit was therefore properly filed.
Commencement date of employment and evidential weight of NSSF statements
NSSF statements do not prove employment; in the absence of employer records the claimant's testimony is accepted, though assessment was limited to the 3-year period claimed before the labour officer
Section 10 of the Employment Act obliges employers to keep records of employment, even for casual employees. Where no such records exist, the claimant's evidence stands. The respondent's NSSF statement showing registration from May 2013 could not displace the claimant's testimony of employment from January 2011. However, because the claimant's claim to the labour officer covered only 3 years, terminal dues were assessed on that period, supported by payment vouchers evidencing continuous employment.
Underpayment relative to the statutory minimum wage
The claimant was underpaid against the applicable minimum wage orders; underpayments of Ksh.131,000 were computed after deducting NSSF remittances
Using the Regulation of Wages (General) (Amendment) Order, 2013, the court compared the minimum wage (Ksh.432.40 per day from 1st May 2013, Ksh.432.30 from May 2014, Ksh.484.40 from May 2015, Ksh.484.30 from January 2016) with the Ksh.300 and later Ksh.350 daily wage actually paid, deducting NSSF contributions, arriving at Ksh.131,000 in underpayments.
Unfair termination and notice pay
The unfair termination claim and notice pay were rejected due to the claimant's conflicting accounts of the reasons for termination
The claim as pleaded alleged termination following a police report and arrest over alleged theft, but in evidence the claimant testified the employment was terminated because work had reduced. The court found these conflicting accounts undermined the unfair termination claim, and notice pay fell with it.
Leave pay
Leave pay of Ksh.21,224.90 awarded under section 28 of the Employment Act, adopting the labour officer's assessment
The payment vouchers filed by the respondent themselves demonstrated continuous employment over 3 years. With no work records to the contrary, the claimant was entitled to leave pay under section 28 of the Act, and the court adopted the labour officer's assessment of Ksh.21,224.90.
Legal principles established
#- An NSSF statement is not evidence of employment and cannot replace the written contract of employment required under section 10 of the Employment Act
- Where an employer fails to keep records of employment as required under section 10 of the Employment Act, the claimant's evidence as to the nature and commencement of employment is taken as true
Court orders
#- 1.Judgment entered for the claimant for underpayments of Ksh.131,000
- 2.Judgment entered for the claimant for leave pay of Ksh.21,224.90
- 3.Each party shall bear own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act and Employment Act, 2007 (claim for terminal dues and unfair termination)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nicholas Chunguli Kaduka v Kakamega Millenium Diesel Works [2020] KEELRC 1764 (KLR)", Case Analysis (2020). Cause No. 137 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1764/eng@2020-01-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.