Casto Gitongah Mwai v Brookside Dairy Limited [2020] KEELRC 1796 (KLR)
The bottom line
#A Kenyan court ruled that Brookside Dairy wrongly deducted money from an employee's final pay for SACCO loans without his written permission and must refund it.
What this practically means
#Executive summary
#Key legal issues
#Whether an outstanding SACCO loan balance existed at retirement
The claimant proved on a balance of probability that he had no outstanding loan obligation to the SACCO at the time his terminal dues were calculated
The SACCO statement showed a loan of Kshs. 231,981 plus guaranteed defaulters' loans totalling about Kshs. 264,135. The clearance form signed by the SACCO officer on 27.2.2017 showed the loans cleared using share contributions of Kshs. 266,103 leaving a nil balance. The employer ignored this advice when calculating terminal dues.
Authority for deduction from terminal dues
The employer had no written authority from the claimant and no legal authority to deduct the Kshs. 33,191.50 and pay it to the SACCO
RW1 admitted there was no written authority from the claimant. The court held that without written authority the employer had no right to deduct salary for loans guaranteed to other SACCO members. The deduction was also contrary to the SACCO's advice in the clearance form.
Who should refund the deducted sum
The respondent, being the wrongdoer who wrongfully deducted the dues, is liable to pay the claimant
The claimant never authorised the deduction and the SACCO never advised that any loan balance remained; the clearance form showed a nil balance. The respondent therefore wrongfully deducted the terminal dues without justification and paid them to the SACCO, making it the party liable to refund.
Claim for overtime
Claim dismissed - not proved on a balance of probability
The claimant admitted never complaining about overtime from 2010 until retirement, and that he was paid for public holidays worked. His contract did not provide for overtime and he produced no written evidence or witness to prove he was required to work 6 a.m. to 6 p.m. The attendance register was in the employer's custody but no adverse inference was drawn.
Legal principles established
#- An employer has no right to deduct an employee's salary or terminal dues and pay a third party (such as a SACCO) without the employee's written authority
Court orders
#- 1.Judgment entered for the claimant against the respondent in the sum of Kshs. 33,191.50/-
- 2.Costs of the suit awarded to the claimant
- 3.Interest on the awarded sum at court rates from the date of filing the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (not expressly cited in judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Macharia v Windsor Golf Hotel & Country Club (Cause E999 of 2021) [2024] KEELRC 71 (KLR)[2024] KEELRC 71 (KLR)30 Jan 2024distinguished
Cite this brief
#Cite this brief
Caselaw, "Casto Gitongah Mwai v Brookside Dairy Limited [2020] KEELRC 1796 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1796/eng@2020-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.