Mwathi v Collection Agency Limited (Cause 2441 of 2017) [2022] KEELRC 1298 (KLR)

Section 31 of the Employment Act obliges an employer to provide reasonable housing accommodation or a sufficient sum as rent. Section 31(2) only applies where the contract expressly provides a consolidated salary. Following precedent, 15% of salary is the reasonable proportion spent on house rent. The Respondent did not attend or offer testimony, so payment of house allowance was not proved and the Claimant was awarded 15% of salary for one year.

Overtime is fluid and varies with hours and days worked. The employee bears the burden of proving that she worked overtime and sought payment for it. The Claimant produced no time sheets and made no demand for overtime during her employment, only raising the claim at the institution of the suit. The head of claim was therefore unproved and disallowed.

The Respondent deducted PAYE, NSSF and NHIF but failed to remit them, as shown by the NSSF statement and pay slips tendered uncontroverted. The Claimant, being a person living with disability, was exempt from PAYE; the Respondent knew this and the deduction was unlawful and refundable. Failing to remit deductions to government agencies is an offence, and the deducted sums were awarded to the Claimant.

Under Section 28 of the Employment Act an employee is entitled to not less than twenty-one working days leave per year. The Claimant's uncontroverted testimony was that of 42 leave days she took only 8, leaving 34 days uncompensated. Service pay is due under Section 35(5) and (6) where the employee has not enjoyed the benefit of statutory deductions; the NSSF statement showed no remittances by the Respondent, entitling her to service pay for the two years worked.