Kanyi v Gatimu Secondary School & another (Cause 463 of 2014) [2022] KEELRC 1323 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Claimant was entitled to gratuity/severance pay
Prayer for gratuity/severance failed: severance pay applies only on redundancy, and gratuity was not contractual
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.
Whether the Claimant was underpaid relative to the statutory minimum wage
No underpayment established; the claim was dismissed
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.
Whether the Claimant was entitled to a certificate of service
Yes - the 1st Respondent was ordered to issue one within 30 days
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.
Liability of the 2nd Respondent (Attorney General)
The Attorney General is not liable; no specific claim was made against that office
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.
Legal principles established
#- 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
#- 1.The 1st Respondent is ordered to issue and deliver a certificate of service to the Claimant within 30 days of the judgment
- 2.All other reliefs (gratuity/severance, underpayment, severance pay) denied
- 3.Each party to meet own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act; memorandum of claim filed under the ELRC procedure)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.