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ELRCPartially AllowedNot stated in judgment· [2020] KEELRC 1820 (KLR)

Phanice Nekesa Wangwe v Kenya National Union of Teachers (KNUT) [2020] KEELRC 1820 (KLR)

Employment and Labour Relations Court
29 January 2020
389 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A former KNUT secretary won over Kshs. 2.3 million in unpaid salary plus interest and costs, but lost her claim for damages over the termination itself.

What this practically means

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Executive summary

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The claimant was employed by the respondent from 1986 to 2008 as a secretary at the Bungoma Branch Office, earning Kshs. 65,970 per month. Following a sub-division, she was transferred between June 2008 and October 2010 to the Bungoma South Office, which never paid her salary. Her complaint to the national head office resulted in a directive to the Bungoma South Branch to pay her, but instead she received a letter of termination on 27th October 2010. She sued for Kshs. 2,312,873 in arrear salary and general damages for unlawful termination; the suit was filed on 19th January 2011 at the Bungoma High Court and later transferred to this court. The respondent called no witness, cross-examining the claimant only and closing its defence without evidence. The court found the claim for arrear salary proved on a balance of probabilities and awarded Kshs. 2,312,873 with interest at court rates from the date of filing suit until payment in full. However, the claimant failed to sufficiently prove that the termination was unlawful and unfair, and the claim for general damages was rejected. The respondent was ordered to pay the costs of the suit. Judgment was delivered on 29th January 2020 by Mathews N. Nduma, Judge, the claimant appearing in person and M/S Wakholi for the respondent.

Key legal issues

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01

Proof of unpaid salary

Holding

The claimant proved on a balance of probabilities that she was not paid salary from November 2008 to 27th October 2010, and was awarded Kshs. 2,312,873 with interest

Reasoning

The claimant testified on oath and produced documents including a complaint dated 23rd April 2019 to the Secretary General, KNUT, for unpaid salary from November 2008. The respondent cross-examined the claimant but closed its defence without tendering any evidence in rebuttal. The court therefore accepted her sworn testimony that the Bungoma South Office, to which she was transferred in 2008, never paid her salary, and that despite a directive from the national head office she remained unpaid until termination.

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02

Lawfulness and fairness of termination

Holding

The claim for general damages for unlawful termination failed because the claimant did not sufficiently prove the termination was unlawful and unfair

Reasoning

Although the termination of employment was proved, the claimant did not sufficiently demonstrate that it was unlawful or unfair. On the evidence before it, the court declined to award general damages for the termination, awarding only the proved arrear salary. The judgment does not detail the reasoning underlying this finding beyond the bare conclusion of insufficient proof.

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Legal principles established

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  • A claimant who proves on a balance of probabilities that salary was not paid for a defined period is entitled to judgment for the arrear salary
  • A party who elects not to call evidence in rebuttal risks the uncontroverted sworn testimony of the opposing party being accepted

Court orders

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  1. 1.Judgment entered in favour of the claimant against the respondent for Kshs. 2,312,873 being unpaid arrear salary
  2. 2.The award to attract interest at court rates from date of filing suit until payment in full
  3. 3.The respondent to pay costs of the suit
Jurisdiction invoked
Employment and Labour Relations Court, suit originally filed at Bungoma High Court on 19th January 2011 and transferred to this court

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Phanice Nekesa Wangwe v Kenya National Union of Teachers (KNUT) [2020] KEELRC 1820 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1820/eng@2020-01-29

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.