Grace Watiri Mwathi v Board of Management, Kagondo Secondary School [2020] KEELRC 1776 (KLR)
The bottom line
#A Kenyan court dismissed almost all of a retired secretary's claims for unpaid dues because they were either never properly pleaded, lacked evidence, or were filed too late.
What this practically means
#Executive summary
#Key legal issues
#Pleading of particulars of underpayment
The claim for underpayment failed because the Memorandum of Claim did not plead the monthly earnings against the applicable wage orders, and the court could not formulate the case for the claimant
The court analysed the bank and Sacco statements against wage orders but held that such analysis ought to have arisen from the pleadings. Relying on the IEBC v Mutinda Mule line of authority, parties are bound by their pleadings; particulars introduced via submissions would deny the respondent a fair chance to reply under Rule 13 of the Court Rules.
Applicability of civil service circulars and wage guidelines to Board of Management employees
The Ministerial and DPM circulars did not apply to an employee of the respondent Board of Management, distinguishing Dadson Maina
The claimant relied on Dadson Maina & 33 others v Board of Management, Nyeri Primary School where employees of a Board of Management were held to be public officers. The court distinguished it, holding the circulars of the Minister and DPM do not apply to employees of the respondent Board of Management.
Annual leave claim spanning 18 years
The claim failed; the claimant was allowed 2 months terminal leave and leave entitlement cannot exceed 18 months under section 28 of the Employment Act, 2007
The retirement letter confirmed the claimant was allowed terminal leave of 2 months. Section 28 of the Employment Act, 2007 limits annual leave accrual, and the Court of Appeal in E. Torgbor v Ladislaus Odongo Ojuok was cited on this limit.
Limitation of claims arising under the repealed Employment Act Cap 226
Claims for statutory dues from 1999 to 2005 and service pay were time barred, being urged in a claim filed on 4th October 2018
The dues arose under the repealed Employment Act Cap 226. Following Nyabuto Arambe Abusa v Kenya Power, unreasonable delay in filing a claim that does not constitute a continuing injury cannot be excused; the 2005 service pay claim was not covered under the repealed legislation and only arose under section 35 of the Employment Act, 2007.
Overtime and rest day
The overtime claim failed for lack of particulars of hours worked; working Saturdays without details meant the claimant had her rest day on Sunday
Section 27 of the Employment Act, 2007 allows an employee a rest day each week. The claimant gave no timeline, hours of reporting or total hours worked each day, so the court could not quantify any overtime award as claimed.
Certificate of service
A certificate of service is due unconditionally under section 51 of the Employment Act, 2007
The court held the certificate of service is a statutory entitlement of every employee which should issue unconditionally, and this was the only head of claim allowed.
Legal principles established
#- Parties are bound by their pleadings and a court cannot make out or formulate a case for a party from the evidence before it
- A claimant cannot introduce or particularise claims in written submissions where such particulars were not pleaded, as this denies the respondent a fair chance to reply
- A claim for unpaid statutory dues accruing under repealed legislation that is filed out of time and does not constitute a continuing injury is time barred
- Without a contract providing for gratuity, gratuity is not due
- A certificate of service is due to every employee unconditionally under section 51 of the Employment Act, 2007
Court orders
#- 1.Issuance of a Certificate of Service to the claimant unconditionally in accordance with section 51 of the Employment Act, 2007
- 2.Dismissal of all other claims made in the Memorandum of Claim
- 3.No orders as to costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under Article 162(2) of the Constitution (employment and labour relations claims)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Grace Watiri Mwathi v Board of Management, Kagondo Secondary School [2020] KEELRC 1776 (KLR)", Case Analysis (2020). Cause No. 253 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1776/eng@2020-01-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.