Humphrey Awori Rakewa v Joshua Khamati Shiveka (Chairman Board of Directors - Nyawek Network) & Panother [2022] KEELRC 581 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#When the Claimant's contract terminated
The contract was a fixed-term contract starting 1/1/2018 and expiring on 31/12/2019; no renewal or extension was proved.
The written contract offered employment from 1st January, 2018 to 31st December, 2019. The letters of acting appointment and promotion indicated only starting dates, not expiry dates. No evidence showed renewal or extension beyond the stated term. Applying Mombasa Apparels (EPZ) Limited, a fixed-term contract lapses automatically absent mutual agreement, so the Claimant could not claim for a period outside his contract.
Unpaid salaries for October to December 2019
Awarded at Kshs. 150,000 per month, totalling Kshs. 450,000.
The Respondents did not dispute owing salary for October, November and December 2019. RW1 confirmed the non-payment and attributed it to non-receipt of donor funding, and admitted the Claimant's gross salary was Kshs. 150,000 at the time of the contract's expiry. On that concession the three months' salary was awarded.
Acting allowances at 20% of gross salary
Dismissed; the agreed rate was 10% and it was paid.
The letter of Acting Appointment expressly provided for an acting allowance of 10% of the monthly basic salary. Neither the employment contract nor any HR manual or policy indicated a different rate. Applying Kenya Airways Limited, the court enforces only obligations the parties agreed to. Pay slips proved payment at 10%, which the Claimant confirmed, so the 20% claim lacked merit.
Pay in lieu of leave
Awarded 14 days' pay in lieu of leave at Kshs. 70,000.
The leave forms produced in evidence showed a balance of 14 unutilized leave days at the time the contract lapsed. The Respondents' witness confirmed on cross-examination that the Claimant was owed pay in lieu of those 14 days, making the claim merited.
Unremitted NHIF, NSSF and PAYE deductions
Dismissed for want of proof.
The pay slips showed deductions were made from the Claimant's salary on account of NHIF, NSSF and PAYE. However, the burden lay on the Claimant to prove non-remittance, and he did not submit an NSSF statement or other evidence proving the deductions were not remitted to the respective statutory bodies.
Certificate of service
Granted as a statutory entitlement.
The court held that a certificate of service is a statutory entitlement and the employer bears an obligation to issue one to an employee irrespective of the reasons for separation. The Respondents had withheld it, citing the Claimant's failure to clear and return company property, but that did not displace the statutory duty.
Legal principles established
#- A fixed term contract of employment lapses automatically unless otherwise mutually agreed by the parties.
- A certificate of service is a statutory entitlement that an employer must issue irrespective of the reason for separation.
- A court is limited to enforcing obligations the parties to an employment relationship agreed to; terms not agreed cannot be implied merely because they appear reasonable.
Court orders
#- 1.Payment of Three Months' Unpaid Salary at Kshs. 450,000/-
- 2.Pay in lieu of 14 unutilized leave days at Kshs. 70,000/-
- 3.A certificate of service
- 4.Costs of the suit
- Jurisdiction invoked
- First-instance employment claim under the Employment and Labour Relations Court's jurisdiction (specific provision not stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Humphrey Awori Rakewa v Joshua Khamati Shiveka (Chairman Board of Directors - Nyawek Network) & Panother [2022] KEELRC 581 (KLR)", Case Analysis (2022). Cause No 53 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/581/eng@2022-03-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.