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ELRCDismissedNot stated in judgment· [2022] KEELRC 916 (KLR)

Abednego Ndolo Mulinge v Kenya Institute of Management [2022] KEELRC 916 (KLR)

Employment and Labour Relations Court
28 January 2022
OMOnesmus N Makau
1,146 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 a pension claim because the employee could not produce pay slips or a pension statement proving his deductions were never remitted.

What this practically means

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Executive summary

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The claimant, employed by the Respondent from 8 March 2010 and promoted to Senior Officer, Administration and Logistics, sued on 18 June 2020 seeking an order compelling the Respondent to remit statutory/pension deductions of Kshs. 593,066, punitive damages, and costs. He alleged that 10% of his basic salary was deducted monthly towards pension and staff welfare, matched by an equal employer contribution, that the employer's contribution was reduced to 5% from August 2016, and that the Respondent stopped remitting contributions from January 2015. The Respondent, though served on 15 July 2020, neither entered appearance nor filed a response, and the claim proceeded by formal proof on 24 May 2021, at which the claimant testified and produced exhibits 1 to 11. He relied on Section 19 of the Employment Act and two authorities on employer pension contributions. The court framed a single issue: whether the claimant was entitled to the remedies sought. While acknowledging that the employer-employee relationship and the deduction scheme were not denied, the court held that the burden lay on the claimant to prove, with documentary evidence, that the money was deducted and never remitted. Absent pay slips and a pension statement from the Provident Fund, no assumption could be made. The claim was found bereft of merit and dismissed with no costs; punitive damages were refused for lack of legal basis. The claimant was granted liberty to verify his pension status and, if necessary, file fresh proceedings. Judgment was delivered online at Nakuru on 28 January 2022 pursuant to Covid-19 directions.

Key legal issues

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01

Whether the claimant proved entitlement to an order compelling remittance of Kshs. 593,066 in pension contributions

Holding

The claim failed for want of documentary proof; the court found the claim devoid of merit

Reasoning

Although unchallenged, the claimant's testimony had to meet the evidentiary burden. He produced only a schedule (Ex-2) but no pay slips showing the deductions were made, and no pension statement from the Provident Fund verifying non-remittance. Without such proof the court could not assume the deductions were made or unremitted, and the claim collapsed under the burden of proof resting on the claimant.

p. 2

Legal principles established

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  • A claimant alleging non-remittance of deducted pension contributions bears the burden of proving by documentary evidence (pay slips and a pension statement) both that the deductions were made and that they were not remitted

Court orders

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  1. 1.The suit is dismissed with no costs
  2. 2.The claimant is given liberty to verify with the provident fund whether his pension remittance is up to date and, if not, file fresh proceedings

Authorities

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Legislation

  • Employment ActSection 19(1)(f)
  • Employment ActSection 19(2)
  • Employment and Labour Relations Court (Procedure) RulesRule 28(3)
  • Retirement Benefits Authority RegulationsNot specified (referenced in cited authority)

Cases cited (2)

  • Richard Michosi Mwasaru V Beverly Schools of Kenya Limited
    [2020] eKLR
  • Nicodemus Ochieng Ogutu V Village of Hope Kenya
    [2018] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (Section 19 statutory deductions); suit filed as an ELRC cause

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Abednego Ndolo Mulinge v Kenya Institute of Management [2022] KEELRC 916 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/916/eng@2022-01-28

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