Ndung’u v Mirimi & 3 others (t/a Murimi Ndumia Mbago & Muchela Advocates) (Cause E038 of 2022) [2023] KEELRC 2477 (KLR)
The bottom line
#Without a written employment contract, a Kenyan court will only enforce statutory entitlements like untaken leave, not verbal promises of higher pay, commissions or allowances.
What this practically means
#Executive summary
#Key legal issues
#Entitlement to claimed salary increment without written contract
Claim for Kshs. 150,000 failed; the claimant's salary at resignation was Kshs. 130,000
The promotion letter of 18 February 2019 contained no salary review. The claimant's own email of 20 January 2020 acknowledged an offer of Kshs. 130,000. Without a written contract, and given the sector is unregulated, the claimant earned above the minimum wage and could not justify a claim for any higher salary.
House allowance under Section 31 of the Employment Act
Not due where the claimant's salary was already well above the general wage under the Wage Orders
The court held that without written terms the Wage Orders govern; the claimant's salary of Kshs. 130,000 far exceeded the general worker's minimum wage, and a 15% house allowance tabulation based on the minimum wage would not yield the sums claimed. The claim accordingly failed.
Commissions on concluded files
Not payable absent any agreement; claim constituted a claim to unjust enrichment
There was no contractual or oral assurance that the firm would pay commissions over concluded files, and no formula was agreed. The claimant was not a partner entitled to commissions at resignation, so claiming commissions within his fixed salary sought unjust enrichment.
Untaken annual leave
Claimant awarded Kshs. 43,000 for untaken leave days over the employment period
Annual leave is a statutory right under Section 28 of the Employment Act and it is the employer's duty to secure that right. On an assessment of the office closure periods from mid-December to mid-January, discounting weekends and public holidays, the claimant was found owed 3 leave days per year, rounded to 10 days, computed on his last salary.
Petty cash reimbursements
Not awarded for lack of receipts proving the special damage
Petty cash reimbursement claims resemble special damages requiring strict proof. Although a Petty Cash Requisition Slip was produced for April to July 2021, the accumulation of over Kshs. 86,000 in petty cash without reimbursement defeated the purpose of petty cash, and no receipts supported the claimed Kshs. 179,600.
Legal principles established
#- The duty to keep and produce work records rests on the employer under Section 10(6) of the Employment Act
- Absent written terms, minimum wage orders apply and salary claims beyond amounts actually paid require proof of a written agreement
- Petty cash reimbursement claims are in the nature of special damages and require proof by receipts
- Annual leave is a statutory right under Section 28 of the Employment Act and untaken leave must be compensated
Court orders
#- 1.The claims herein are dismissed save for award of leave pay at Kshs. 43,000
- 2.Each party to bear own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment claims (Employment Act, 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndung’u v Mirimi & 3 others (t/a Murimi Ndumia Mbago & Muchela Advocates) (Cause E038 of 2022) [2023] KEELRC 2477 (KLR)", Case Analysis (2023). Cause No E038 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2477/eng@2023-10-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.