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ELRCDismissedCause No. 537 of 2016· [2022] KEELRC 643 (KLR)

Benard Arii Ekidor v SOS Children’s Villages Kenya [2022] KEELRC 643 (KLR)

Employment and Labour Relations Court
23 February 2022
MOMaureen Onyango
2,233 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed an employee's underpayment claim because he signed a new contract fixing his salary, and oral promises can't change a signed written agreement.

What this practically means

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Executive summary

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The Claimant, formerly employed by the Respondent NGO, sued claiming he was underpaid for 38 months and unpaid a 13th cheque, seeking compensation with interest and costs. The Respondent denied the claim, asserting that the Claimant's first three-month contract as National Emergency Relief Program Coordinator at Kshs.110,000 per month lapsed by time, and that he was later engaged under a distinct three-year fixed-term contract as Family Strengthening Program Coordinator at Kshs.58,676, which he signed and accepted, declining an extension on its lapse. The suit was disposed of by pleadings, documents, witness affidavits and submissions, the Respondent filing no witness statement. The court framed three issues: unlawful underpayment, payment of the 13th cheque, and entitlement to reliefs. Applying the parol evidence rule as articulated by the Court of Appeal in Commercial Bank Limited v Kenya Grange Vehicle Industries Limited, the court held that the written second contract, signed freely, fixed the salary at Kshs.58,676 and could not be varied by an alleged oral promise to rectify an error; the first contract had ended by lapse of time and the positions under the two contracts were distinct. On the 13th cheque, payslips produced by the Respondent showed payment each December from 2012 to 2015. Having failed on all heads, the claim was dismissed with costs on 23rd February 2022 by Maureen Onyango J, delivering judgment virtually under COVID-19 directions.

Key legal issues

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01

Whether the Claimant was unlawfully underpaid

Holding

The claim for underpayment failed. The two contracts were distinct: different positions and salaries, and the first expired by lapse of time. The written second contract set salary at Kshs.58,676 and could not be varied by an alleged oral promise.

Reasoning

The court analysed both contracts and applied the parol evidence rule as stated by the Court of Appeal: a written contract's meaning derives from its four corners without extrinsic evidence. The Claimant signed the second contract freely and voluntarily accepting Kshs.58,676; the alleged oral assurance of rectification was unenforceable and the first contract had lapsed.

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02

Whether the Claimant was paid the 13th cheque

Holding

The court found the 13th cheque was paid, as confirmed by payslips for December 2012 to December 2015.

Reasoning

It was not in dispute that the Claimant was entitled to a 13th cheque. The Respondent's payslips documented payment of Kshs.9,779 (prorated) in 2012 and Kshs.60,436 in each of 2013, 2014 and 2015, contradicting the Claimant's assertion of non-payment.

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Legal principles established

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  • Where parties have reduced their agreement to writing, extrinsic or oral evidence may not be adduced to contradict, vary or add to the terms of the written contract
  • A distinct later fixed-term contract with a different position and salary supersedes the terms of an earlier expired contract

Court orders

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  1. 1.The suit is dismissed with costs

Authorities

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Legislation

  • Employment ActSection 10(3)
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 1B

Cases cited (4)

  • Anne Theuri v Kadet Limited
  • KUDHEIHA v Holy Rosary Boarding School
  • Commercial Bank Limited v Kenya Grange Vehicle Industries Limited
    [2017] eKLR
  • Prudential Assurance Company of Kenya Limited v Sukhwender Singh Jutney and Another
    Civil Appeal No. 23 of 2005
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment claims (Employment Act, Section 10(3) invoked)

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, "Benard Arii Ekidor v SOS Children’s Villages Kenya [2022] KEELRC 643 (KLR)", Case Analysis (2022). Cause No. 537 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/643/eng@2022-02-23

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