Dick Kamecherwoa v Highway Secondary School [2021] KEELRC 862 (KLR)
The bottom line
#A Kenyan court awarded a retired watchman Kshs. 161,984 in gratuity and leave pay, but ruled he must claim his pension from the pension scheme, not the employer.
What this practically means
#Executive summary
#Key legal issues
#Entitlement to gratuity for the period 1996-2008 (13 years)
The Respondent admitted and the court found the Claimant entitled to Kshs. 147,810 being 13 years gratuity calculated at one twelfth of each completed month's served pay of Kshs. 11,370 under clause 31 of the CBA.
Both parties agreed the Claimant served under a gratuity scheme until 31.12.2008. RW1 assessed the gratuity at 13 years x 12 months x 1/12 x Kshs. 11,370. The court adopted this calculation as consistent with clause 31 of the CBA and found the Claimant worked 13 years under the gratuity scheme.
Leave pay of 21 days for 2013
The Respondent admitted leave of 21 days valued at Kshs. 14,174.20, which the court confirmed.
RW1 admitted a leave balance of 21 days for 2013 based on gross pay of Kshs. 20,249.30, calculated as 21/30 x Kshs. 11,370. The court confirmed this computation and included it in the decretal sum.
Pension benefits for 2009-2016
The claim for pension for 2009-2016 lies against the RBA pension scheme, not the Respondent, since the Claimant was a scheme member and contributions were remitted.
The Claimant admitted on cross-examination that he was a member of the RBA pension scheme and that the Respondent remitted his pension contributions to the scheme. RW1 testified the scheme was contributory (25% employee, 75% employer). The court therefore held the Claimant should pursue pension under the scheme rules.
Claims for accrued leave for 17 years, overtime, rest days and public holidays
Dismissed for want of proof; generalised claims unsupported by particulars or evidence cannot succeed even where the employer fails to produce employment records.
Relying on Charles Kariuki Mwangi, Patrick Lumumba Kimuyu and Rogoli Ole Manadiegi, the court held the burden of proof remains on the Claimant. The Claimant pleaded no particulars and adduced no evidence of how the sums were computed, so the claims remained mere allegations.
Legal principles established
#- The burden of proving claims for overtime, rest days, public holidays and unutilised leave rests on the employee, who cannot rely on the employer's default in producing employment records to establish the claim.
Court orders
#- 1.Judgment entered for the Claimant against the Respondent in the sum of Kshs. 161,984
- 2.Interest at court rates on that sum from the date of filing suit
- 3.Costs of the suit awarded to the Claimant
- Jurisdiction invoked
- Original employment and labour relations jurisdiction of the Employment and Labour Relations Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dick Kamecherwoa v Highway Secondary School [2021] KEELRC 862 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/862/eng@2021-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.