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ELRCPartially AllowedNot stated in the judgment· [2022] KEELRC 1323 (KLR)

Kanyi v Gatimu Secondary School & another (Cause 463 of 2014) [2022] KEELRC 1323 (KLR)

Employment and Labour Relations Court
13 July 2022
2,016 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 ruled a retired watchman deserved only his certificate of service—severance and gratuity claims failed because his retirement wasn't a redundancy.

What this practically means

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Executive summary

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The Claimant, a watchman employed by the 1st Respondent from January 1993 until his retirement on 30th April 2012, sought a declaration that he was entitled to gratuity/severance pay, Kshs.87,120 in underpayment of salary, severance pay, and a certificate of service. The 1st Respondent denied the claims, asserting the Claimant was a member of NSSF whose benefits had been processed and that a certificate of service had been issued; the Attorney General entered appearance but filed no defence, there being no specific claim against him. The matter was disposed of by written submissions by consent. The court framed three issues: entitlement to the reliefs, liability between the two Respondents, and costs. It held that the Claimant was lawfully retired upon attaining mandatory retirement age - not declared redundant - so severance pay under Section 40 of the Employment Act was inapplicable, and gratuity was not provided for in his letter of appointment, applying Onyango J's decision in Simon Kipkorir Keter v ACK Christian Intermediate Technology Centre & Another. The underpayment claim failed because no evidence established the alleged Job Group A minimum wage of Kshs.9,420; the applicable Legal Notice No.64 of 2011 set the minimum wage for the Claimant's area at Kshs.4,827. However, no certificate of service was proved to have been issued, so the court ordered the 1st Respondent to issue and deliver one within 30 days. The Attorney General was held not liable. Each party was ordered to bear its own costs.

Key legal issues

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01

Whether the Claimant was entitled to gratuity/severance pay

Holding

Prayer for gratuity/severance failed: severance pay applies only on redundancy, and gratuity was not contractual

Reasoning

The court distinguished severance pay under Section 40 of the Employment Act, payable only on redundancy, from gratuity, which is a gratuitous voluntary payment unless provided in the appointment letter. The Claimant retired at mandatory age, not through redundancy, and his letter of appointment made no gratuity provision, so neither head was payable.

p. 4
02

Whether the Claimant was underpaid relative to the statutory minimum wage

Holding

No underpayment established; the claim was dismissed

Reasoning

The Claimant's counsel asserted entitlement to Kshs.9,420/= under Job Group A of the Labour Institutions Act Regulations but tendered no evidence establishing that classification. The 1st Respondent relied on Legal Notice No.64 of 2011 fixing the minimum wage for a watchman in Ol Joro Orok, Nyandarua County at Kshs.4,827/=, well below the Claimant's salary, so no underpayment was found.

p. 4
03

Whether the Claimant was entitled to a certificate of service

Holding

Yes - the 1st Respondent was ordered to issue one within 30 days

Reasoning

The 1st Respondent asserted that a certificate of service had been issued but produced none, and the Claimant did not display one. In the absence of evidence of issuance, the court ordered the 1st Respondent to issue and deliver a certificate of service to the Claimant within 30 days of the judgment.

p. 5
04

Liability of the 2nd Respondent (Attorney General)

Holding

The Attorney General is not liable; no specific claim was made against that office

Reasoning

The Claimant pleaded only that the Attorney General is the Chief Government Advisor sued in that capacity. Beyond this titular capacity, no liability was attributed to the AG, explaining why counsel entered appearance but filed no defence or submissions. The court held the AG not liable for any of the reliefs sought.

p. 4

Legal principles established

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  • An employer is the custodian of employment records under Sections 10 and 74 of the Employment Act and bears the consequence of not producing them
  • Gratuity is voluntary unless provided for in the contract or letter of appointment
  • The Attorney General cannot be held liable where no specific claim or liability is attributed to that office

Court orders

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  1. 1.The 1st Respondent is ordered to issue and deliver a certificate of service to the Claimant within 30 days of the judgment
  2. 2.All other reliefs (gratuity/severance, underpayment, severance pay) denied
  3. 3.Each party to meet own costs

Authorities

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Legislation

  • Employment ActSections 10 and 74
  • Employment ActSection 40
  • Labour Institutions Act Regulations (minimum wage order)Legal Notice No.64 of 2011

Cases cited (1)

  • Simon Kipkorir Keter v. ACK Christian Intermediate Technology Centre & Another
    (2016) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act; memorandum of claim filed under the ELRC procedure)

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, "Kanyi v Gatimu Secondary School & another (Cause 463 of 2014) [2022] KEELRC 1323 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1323/eng@2022-07-13

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