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ELRCPartially AllowedNot stated on the face of the extract (ELRC cause in which orders of 13th March 2019 were issued)· [2021] KEELRC 1487 (KLR)

James Wafula Wenyaa v County Government of Machakos & another [2021] KEELRC 1487 (KLR)

Employment and Labour Relations Court
9 February 2021
MMM. Mbaru
2,051 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan employer who refuses to give an itemised pay statement loses—the court simply adopts the employee's own figures, here Kshs 11.77 million.

What this practically means

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Executive summary

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The claimant, Dr James Wafula Wenyaa, filed an amended notice of motion dated 26th October 2020 under sections 16, 20 and 87 of the Employment and Labour Relations Court Act, seeking tabulation of his award at Kshs 11,773,570 by way of an itemized pay statement under section 20 of the Employment Act, 2007, conviction of the respondents' payroll officers under section 16(4), and punitive and exemplary damages with interest. The claimant relied on orders issued on 13th March 2019 reinstating his half salary and directing payment of arrears, orders served on and acknowledged by the respondents' advocates. The respondents, through a replying affidavit sworn by their Chief Officer, Dr Joel Mwoya, denied contempt, asserting that the claimant had been reinstated on 23rd July 2020; that COVID-19 prevented staff from preparing the itemized pay statement; and that payment of the award depended on budgeting and approval by the County and National Treasuries. The court framed two issues: determination of the particulars of the itemized pay statement, and whether the payroll officers were guilty of an offence under section 16(4). It held that section 20 imposes a mandatory duty on employers, that compliance with court orders is a critical service unaffected by the pandemic, and rejected the respondents' explanation. Lacking an itemized statement and any valid reason for its absence, the court adopted the claimant's tabulation. It declined to convict the officers itself, holding that the offence under section 16(4) requires report and investigation by the Kenya Police Service and the County Labour Officer. The Registrar was ordered to serve the County Labour Officer, Machakos, to address the offence and report back within thirty days, with costs to the claimant.

Key legal issues

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01

Determination of the particulars of the itemized pay statement for Kshs 11,773,570

Holding

The court deemed/adopted the claimant's tabulation of Kshs 11,773,570 since the respondents failed to issue the itemized pay statement and offered no valid reason for the failure

Reasoning

Section 20 of the Employment Act places a mandatory responsibility on employers to give written itemized pay statements. The respondents did not deny non-compliance, pleading COVID-19 staffing constraints and delayed National Government disbursements. The court rejected this, holding that compliance with court orders is a critical service, and that failing to issue itemized pay statements is abhorred by fair labour practice. Consequently the claimant's tabulation binds the court.

p. 3
02

Whether the respondents' payroll officers are guilty of an offence under section 16(4) of the Employment Act

Holding

Failure to give a statement under section 20 is an offence, but conviction is a matter for investigation and prosecution by the appropriate agencies; the court directed the County Labour Officer, Machakos to address the offence and report back within 30 days

Reasoning

The court found that section 16(4) criminalizes failure to issue statements required by sections 10, 12, 13 or 20. It held that this brings an element of criminal conduct and labour offences requiring report and investigation by appropriate agencies - the Kenya Police Service and the County Labour Officer - rather than conviction by the civil court in these proceedings.

p. 3

Legal principles established

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  • An employer has a mandatory statutory duty to issue an itemized pay statement under section 20 of the Employment Act, 2007, and no excuse relieves the employer of that duty.
  • Where an employer fails without valid reason to provide an itemized pay statement, the court is bound by the employee's own tabulation of the amounts due.
  • Services that enable an employer to comply with court orders are critical services, so the COVID-19 pandemic does not excuse non-preparation of an itemized pay statement.

Court orders

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  1. 1.The court is bound by the claimant's tabulation of the award at Kshs 11,773,570 in the absence of an itemized pay statement from the respondents
  2. 2.The Registrar shall extract the orders herein and serve the County Labour Officer, Machakos, to address the offences pursuant to section 16(4) of the Employment Act, 2007 and report back to the court within thirty (30) days
  3. 3.Costs awarded to the claimant
Jurisdiction invoked
Sections 16, 20 and 87 of the Employment and Labour Relations Court Act and sections 16 and 20 of the Employment Act, 2007

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, "James Wafula Wenyaa v County Government of Machakos & another [2021] KEELRC 1487 (KLR)", Case Analysis (2021). Not stated on the face of the extract (ELRC cause in which orders of 13th March 2019 were issued). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1487/eng@2021-02-09

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