Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No. 137 of 2017· [2020] KEELRC 1764 (KLR)

Nicholas Chunguli Kaduka v Kakamega Millenium Diesel Works [2020] KEELRC 1764 (KLR)

Employment and Labour Relations Court of Kenya at Nakuru
23 January 2020
1,428 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

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

#
The claimant, employed as a general worker by the respondent from January 2011 on verbal terms at Ksh.300 per day (raised to Ksh.350 in January 2016), sued for underpayments, notice pay, public holiday pay, leave pay and service pay after his employment was terminated in August 2016. The respondent contended employment began on 28th May 2013, was intermittent and part-time, and that the claimant left of his own volition after the respondent scaled down casual labour due to financial difficulties; it also alleged the claimant was arrested over suspected theft and never returned. A preliminary objection that the Verifying Affidavit was uncommissioned under Rule 4(2) of the ELRC Procedure Rules, 2016 failed, the court record showing the affidavit was duly commissioned on 23rd March 2017. On the merits, the court held an NSSF statement is not evidence of employment and cannot replace the written contract contemplated by section 10 of the Employment Act; absent employer records, the claimant's evidence of commencement was accepted, but terminal dues were limited to the 3-year period claimed before the labour officer. Computing minimum wage shortfalls against the Regulation of Wages (General) (Amendment) Order, 2013, less NSSF remittances, the court awarded underpayments of Ksh.131,000 and leave pay of Ksh.21,224.90 under section 28. The unfair termination and notice pay claims failed on the claimant's conflicting accounts of the termination, and the other heads were not awarded. Each party was ordered to bear its own costs.

Key legal issues

#
01

Validity of the Verifying Affidavit under Rule 4(2) of the ELRC Procedure Rules, 2016

Holding

The claim is not defective; the record showed the Verifying Affidavit was duly commissioned by an Advocate and Commissioner for Oaths

Reasoning

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.

p. 2
02

Commencement date of employment and evidential weight of NSSF statements

Holding

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

Reasoning

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.

p. 2
03

Underpayment relative to the statutory minimum wage

Holding

The claimant was underpaid against the applicable minimum wage orders; underpayments of Ksh.131,000 were computed after deducting NSSF remittances

Reasoning

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.

p. 3
04

Unfair termination and notice pay

Holding

The unfair termination claim and notice pay were rejected due to the claimant's conflicting accounts of the reasons for termination

Reasoning

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.

p. 2
05

Leave pay

Holding

Leave pay of Ksh.21,224.90 awarded under section 28 of the Employment Act, adopting the labour officer's assessment

Reasoning

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.

p. 3

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. 1.Judgment entered for the claimant for underpayments of Ksh.131,000
  2. 2.Judgment entered for the claimant for leave pay of Ksh.21,224.90
  3. 3.Each party shall bear own costs

Authorities

#

Legislation

  • Employment Actsection 10
  • Employment Actsection 28
  • Employment and Labour Relations Court Procedure RulesRule 4(2)
  • Regulation of Wages (General) (Amendment) Order2013 Order effective 1st May 2013
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.