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ELRCPartially AllowedCause No 53 of 2020· [2022] KEELRC 581 (KLR)

Humphrey Awori Rakewa v Joshua Khamati Shiveka (Chairman Board of Directors - Nyawek Network) & Panother [2022] KEELRC 581 (KLR)

Employment and Labour Relations Court
10 March 2022
2,366 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Claimant sued the Respondents for Kshs. 1,204,100.00 being unpaid salaries from October 2019 to February 2020, six months' acting allowances at 20% of gross salary, pay in lieu of leave, unremitted NHIF, NSSF and PAYE deductions, a certificate of service, costs and interest. The Respondents admitted owing only three months' salary (October to December 2019, Kshs. 450,000), asserting the Claimant's fixed-term contract expired on 31st December 2019 and that donor funding failure caused the non-payment. The court framed two issues: when the contract terminated and entitlement to remedies. It held the contract was fixed term from 1/1/2018 to 31/12/2019, applying Mombasa Apparels (EPZ) Limited that such contracts lapse automatically absent mutual renewal; claims for January and February 2020 salary therefore failed. Three months' salary of Kshs. 450,000 was awarded as undisputed. The acting allowance claim at 20% was dismissed: the letter of Acting Appointment provided for 10%, which pay slips proved was paid and the Claimant confirmed; following Kenya Airways Limited, the court would not imply unagreed terms merely because they seem reasonable. Fourteen days' pay in lieu of leave (Kshs. 70,000) was awarded, the Respondents having conceded the entitlement. Claims for unremitted statutory deductions failed for want of proof of non-remittance. A certificate of service was ordered as a statutory entitlement. Judgment was entered for the Claimant in the sums of Kshs. 450,000 and Kshs. 70,000, plus the certificate of service and costs of the suit. The Claimant did not file submissions; the Respondents did.

Key legal issues

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01

When the Claimant's contract terminated

Holding

The contract was a fixed-term contract starting 1/1/2018 and expiring on 31/12/2019; no renewal or extension was proved.

Reasoning

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.

p. 3
02

Unpaid salaries for October to December 2019

Holding

Awarded at Kshs. 150,000 per month, totalling Kshs. 450,000.

Reasoning

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.

p. 3
03

Acting allowances at 20% of gross salary

Holding

Dismissed; the agreed rate was 10% and it was paid.

Reasoning

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.

p. 4
04

Pay in lieu of leave

Holding

Awarded 14 days' pay in lieu of leave at Kshs. 70,000.

Reasoning

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.

p. 4
05

Unremitted NHIF, NSSF and PAYE deductions

Holding

Dismissed for want of proof.

Reasoning

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.

p. 4
06

Certificate of service

Holding

Granted as a statutory entitlement.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.Payment of Three Months' Unpaid Salary at Kshs. 450,000/-
  2. 2.Pay in lieu of 14 unutilized leave days at Kshs. 70,000/-
  3. 3.A certificate of service
  4. 4.Costs of the suit

Authorities

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Legislation

  • Employment Actprovision on certificate of service (not specified in judgment)

Cases cited (3)

  • George Onyango v Board of Directors Numerical Machining Complex Ltd & Others
    (2014) eKLR
  • Mombasa Apparels (EPZ) Limited v Tailors and Textiles Workers Union
    (2016) eKLR
  • Kenya Airways Limited versus Aviation & Allied Worker Union & 3 others
    [2014] eKLR
Jurisdiction invoked
First-instance employment claim under the Employment and Labour Relations Court's jurisdiction (specific provision not stated in the judgment)

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, "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.