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ELRCDismissedCause No 663 of 2017· [2021] KEELRC 1836 (KLR)

Philip Oluoch Kasare v Ashton Apparels (EPZ) Limited [2021] KEELRC 1836 (KLR)

Employment and Labour Relations Court
22 April 2021
LNLINNET NDOLO
742 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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The court dismissed an employee's claims for leave pay and underpayment because his own payslips proved the employer had already paid everything owed.

What this practically means

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Executive summary

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This was an employment claim by Philip Oluoch Kasare against Ashton Apparels (EPZ) Limited, heard in full trial at the Employment and Labour Relations Court at Mombasa before Linnet Ndolo, Judge. The Claimant, employed as a Machine Operator on a monthly salary of Kshs. 14,279, claimed accrued leave of Kshs. 66,055.10 for the period March 2013 to June 2017, underpayment of Kshs. 271,602.48 for the same period, a certificate of service, and costs. He expressly made no claim for unfair termination. The Respondent maintained that the Claimant was employed on fixed term contracts that lapsed by effluxion of time, that his leave was encashed as and when it fell due (particularising payments for 2014 to 2017), that he was paid in accordance with the applicable Wages Order, and that he had been issued with a certificate of service and paid his terminal dues, including arrears following the July 2017 wage increase. The Claimant testified on his own behalf and the Respondent called its former Group Human Resource and Administration Manager, Masila Ngungu. The Court found that the Claimant's payslips confirmed the leave encashment and that there was no evidence of underpayment. The entire claim was disallowed, with each party bearing their own costs. Judgment was delivered virtually via Microsoft Teams owing to COVID-19 restrictions.

Key legal issues

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01

Entitlement to accrued leave pay

Holding

Claim fails; leave was encashed annually as it fell due

Reasoning

The Respondent produced particulars of leave encashment for 2014 through 2017 in specific amounts, and the Court cross-checked these against the Claimant's own payslips filed in court, which confirmed the encashment. With no unreconciled accrued leave, the claim of Kshs. 66,055.10 could not stand.

p. 2
02

Claim for underpayment

Holding

Claim fails; no evidence of underpayment

Reasoning

The Respondent contended that the Claimant was always paid in accordance with the applicable Wages Order, and that following the wage increase published in July 2017, after the Claimant had left, he was recalled to collect arrears for May and June 2017. The Court found no evidence of any shortfall against the applicable wage rates.

p. 2

Legal principles established

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  • A claim for encashed leave fails where the employer demonstrates by documentary evidence (payslips) that leave was encashed as and when it fell due
  • A claim of underpayment fails absent evidence that remuneration fell below the applicable Wages Order

Court orders

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  1. 1.The Claimant's entire claim fails and is disallowed
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Wages OrderNot specified
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (claim for leave pay, underpayment and certificate of service)

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, "Philip Oluoch Kasare v Ashton Apparels (EPZ) Limited [2021] KEELRC 1836 (KLR)", Case Analysis (2021). Cause No 663 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1836/eng@2021-04-22

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