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ELRCPartially AllowedNot stated in the judgment· [2021] KEELRC 862 (KLR)

Dick Kamecherwoa v Highway Secondary School [2021] KEELRC 862 (KLR)

Employment and Labour Relations Court
30 September 2021
1,608 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

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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

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Executive summary

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The Claimant, employed as a Watchman by the Respondent from 1.3.1996 to 31.3.2016 when he retired on attaining the age of 60, sued for terminal benefits of Kshs. 3,133,598 plus costs and interest. The Respondent admitted employment and retirement but contended that gratuity was payable only for 1996-2008 (13 years) at Kshs. 147,810, that from 2009 the Claimant was a member of the RBA contributory pension scheme, and that leave of 21 days was worth Kshs. 14,174. It alleged the Claimant declined a cheque issued on 7.6.2016. At hearing, RW1 (the Principal) admitted the Claimant was entitled to Kshs. 161,984 from the school. The court found the Claimant entitled to 13 years' gratuity of Kshs. 147,810 under clause 31 of the CBA and 21 leave days at Kshs. 14,174.20. It held that pension dues for 2009-2016 must be pursued from the RBA pension scheme under the scheme rules. Claims for accrued leave for 17 years, overtime, rest days and public holidays were dismissed for want of proof, the court applying the principle that the burden of proving such claims rests on the employee despite the employer being custodian of records. Judgment was entered for the Claimant for Kshs. 161,984 with interest at court rates from the date of filing suit, plus costs. The judgment was delivered online pursuant to Covid-19 directions.

Key legal issues

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01

Entitlement to gratuity for the period 1996-2008 (13 years)

Holding

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.

Reasoning

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.

p. 2
02

Leave pay of 21 days for 2013

Holding

The Respondent admitted leave of 21 days valued at Kshs. 14,174.20, which the court confirmed.

Reasoning

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.

p. 2
03

Pension benefits for 2009-2016

Holding

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.

Reasoning

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.

p. 2
04

Claims for accrued leave for 17 years, overtime, rest days and public holidays

Holding

Dismissed for want of proof; generalised claims unsupported by particulars or evidence cannot succeed even where the employer fails to produce employment records.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.Judgment entered for the Claimant against the Respondent in the sum of Kshs. 161,984
  2. 2.Interest at court rates on that sum from the date of filing suit
  3. 3.Costs of the suit awarded to the Claimant

Authorities

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Legislation

  • Employment ActNot specified (enjoined employer to keep employment records)
  • Collective Bargaining Agreement (CBA)Clause 31
  • ELRC Procedure RulesRule 28(3)

Cases cited (4)

  • Charles Kariuki Mwangi v Intersecurity Services Limited
    [2018] eKLR
  • Patrick Lumumba Kimuyu vs Prime Fuels (K) Ltd
    [2018] eKLR
  • Rogoli Ole Manadiegi v General Cargo Services Ltd
    [2016] eKLR
  • China Overseas Engineering Co. Ltd v. Isaaq Kichwen Kijo
    [2019] eKLR
Jurisdiction invoked
Original employment and labour relations jurisdiction of the Employment and Labour Relations 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, "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.