Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedNot stated in the extract· [2023] KEELRC 1115 (KLR)

Nyakwoka v Tata Africa Holdings Kenya Ltd (Cause 838 of 2015) [2023] KEELRC 1115 (KLR)

Employment and Labour Relations Court
9 May 2023
5,736 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

#

A Kenyan court awarded an employee pay for untaken leave but rejected his claims for commission and discrimination because he lacked proof.

What this practically means

#

Executive summary

#
The Claimant, employed as a Business Manager (Agricultural Equipment) from 4th June 2012 under a two-year written contract, claimed commission and incentives at an alleged industry minimum of 1% of total sales (Kshs.12,121,816/=), pay for 46 untaken leave days, salary equalisation with Asian counterparts, damages for discrimination, interest, costs and a certificate of service. The Respondent admitted the employment but denied any agreed 1% commission, asserting the contract contained no commission term, the letter of 18th April 2012 merely promised to work out a target-based incentive scheme, and the Claimant received Kshs.537,500/= in bonus and commission in December 2013. The court framed three issues: entitlement to 1% commission, discrimination, and the reliefs sought. It held the contract made no provision for commission, the April 2012 letter was only a promise to formulate a scheme which never materialised, no industry minimum was proved, and the Claimant's unauthenticated computations had no probative value; the commission claim failed. On discrimination, the court held the burden does not shift to the employer automatically; the Claimant produced no pay slips, identified no comparators and made no application for production of the payroll, so the discrimination claim failed. However, the Respondent's own email confirmed 46 unutilized leave days; leave being a statutory minimum under Section 28 of the Employment Act, the contractual forfeiture clause was null and void, and payment in lieu was awarded. Judgment was entered for the Claimant for 46 unutilized leave days, costs of the suit, interest at court rates from the date of judgment, and a certificate of service under Section 51 of the Employment Act.

Key legal issues

#
01

Entitlement to 1% commission on total sales

Holding

Claim failed; the letter of 18th April 2012 was only a promise to work out a target-based incentive scheme which never materialised, and no industry minimum of 1% was proved

Reasoning

The contract of employment made no provision for commission. The letter of 18th April 2012 promised to 'work out' a target based incentive/commission in the first quarter, which was never done. The Claimant produced no evidence of an alleged industry minimum of 1%, and his self-prepared, unauthenticated computations were of no probative value. Authority relied on by the Claimant concerned express contractual commission terms, absent here.

p. 9
02

Discrimination on account of salary compared to Asian counterparts

Holding

Claim failed; the Claimant adduced no evidence of the salary disparities, so the burden never shifted to the Respondent

Reasoning

Section 5(7) of the Employment Act places the burden on an employer once discrimination is alleged, but the shift is not automatic. The employee must first lay a foundation by placing sufficient material before the court. The Claimant produced no pay slips, did not identify the comparators, their positions or earnings, and did not seek production of the payroll; the Philip Gow complaint made no reference to him.

p. 12
03

Pay in lieu of 46 unutilized leave days

Holding

Claim succeeded; the 46 unutilized leave days were admitted in the Respondent's records and payment was due

Reasoning

An email from Agnes Tikolo dated 2nd July 2014 confirmed the Claimant had 46 unutilized leave days, and the Respondent adduced no evidence that he took the leave. Leave is a statutory entitlement under Section 28 of the Employment Act, and Section 3(6) renders any agreement to relinquish statutory minimum terms null and void, so the contractual forfeiture clause could not avail the Respondent.

p. 12

Legal principles established

#
  • The employer bears the duty to ensure the employee takes annual leave when due or pay in lieu; contractual forfeiture of statutory leave is void as statutory leave terms are minimum terms
  • The burden of proving discrimination does not shift to the employer automatically; the employee must first place sufficient material before the court

Court orders

#
  1. 1.Payment for 46 unutilized leave days
  2. 2.Costs of the suit
  3. 3.Interest at court rates from date of judgment till payment in full
  4. 4.Certificate of service

Authorities

#

Legislation

  • Constitution of Kenya, 2010Article 27(4) and (5)
  • Employment Act, 2007Section 5(3)(a), 5(7), 3(6), 28, 51
  • Evidence ActSections 107, 108, 109, 112
  • National Cohesion and Integration ActProhibition of discrimination (general)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of Kenya, 2010Articles 159(2)(d), 48
  • ILO Discrimination (Employment and Occupation) Convention, 1958Definition of discrimination

Cases cited (10)

  • Transport and Allied Workers Union v Comarco Properties (EPZ) Ltd
    [2015] eKLR
  • Kamlesh V. Rawal v Achelis Material Handling Ltd
    [2017] eKLR
  • Fancy Jeruto Cherop & another v Hotel Cathay Ltd
    [2018] eKLR
  • Ol Pejeta Ranching Ltd v David Wanjau Muhoro
    [2017] eKLR
  • Keith Wright V Kentegra Biotechnology EPZ Ltd
    (2022) eKLR
  • Ahmed Salim Bahannan V Foton East Africa
    (2016) eKLR
  • Peter K. Waweru v Republic
    [2006] eKLR
  • Simon Gitau Gichuru v Package Insurance Brokers Ltd
    [2021] KESC 12 KLR
  • Samson Gwer & 5 others v Kenya Medical Research Institute & 3 others
    [2020] eKLR
  • Rajab Barasa & 4 others v Kenya Meat Commission
    [2016] eKLR
Jurisdiction invoked
Employment and labour relations jurisdiction (Employment Act, 2007; Evidence Act provisions applied)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Nyakwoka v Tata Africa Holdings Kenya Ltd (Cause 838 of 2015) [2023] KEELRC 1115 (KLR)", Case Analysis (2023). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1115/eng@2023-05-09

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