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ELRCPartially AllowedCause No E023 of 2022· [2023] KEELRC 2700 (KLR)

Kiboko v Osteria Group (Kenya) Limited (Cause E023 of 2022) [2023] KEELRC 2700 (KLR)

Employment and Labour Relations Court
27 October 2023
SRStella Rutto
2,375 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Claimant, employed as Head Cook on 10th October 2018, sued the Respondent claiming Kshs 6,758,000/= for unpaid salary, leave pay, service pay and compensation for unfair labour practices and degrading treatment, alleging he was never paid after June 2019 and left employment in November 2020 owed Kshs 1,494,000/=. The Respondent denied the salary figure, contending he earned Kshs 40,000/= monthly, owed only Kshs 291,667/= in final dues, and deserted duty in August 2020. At trial only the Claimant testified; the Respondent elected not to call oral evidence despite filing a witness statement. The court framed a single issue: whether the Claimant was entitled to the reliefs sought. It found he earned Kshs 100,000/= gross monthly, since the Respondent's contrary letter was never formally produced and thus had no evidential value, its response to the demand letter admitted owing salary arrears without disputing the figure, and the Kshs 50,000/= cheques exceeded the alleged Kshs 40,000/= salary. The unpaid salary claim of Kshs 1,494,000.00 succeeded as uncontroverted. Service pay failed because the Claimant was an NSSF member excluded under Section 35(6)(d) of the Employment Act. Leave pay was limited to 43 admitted leave days under Section 28(4), yielding Kshs 143,333.30. The degrading treatment claim failed for want of evidence, but the withholding of wages was held to breach Section 17(1) of the Employment Act and Article 41(1) of the Constitution as an unfair labour practice, compensated at Kshs 100,000.00. Judgment was entered for Kshs 1,737,333.30 with interest, plus a Certificate of Service within 30 days, with costs to the Claimant.

Key legal issues

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01

What monthly salary was the Claimant earning?

Holding

Kshs 100,000/= gross monthly salary

Reasoning

The Claimant produced a letter of appointment showing Kshs 100,000/=. The Respondent's contrary letter was never formally produced and had no evidential value. The Respondent's reply to the demand letter did not dispute the Kshs 100,000/= figure, and cheques of Kshs 50,000/= exceeded the alleged Kshs 40,000/= salary, undermining the Respondent's case.

p. 4
02

Whether the Claimant was owed unpaid salary

Holding

Yes - Kshs 1,494,000.00 awarded

Reasoning

The Respondent admitted owing salary arrears in its response to the demand letter but did not quantify or prove payment. The Claimant's claim was thus uncontroverted by evidence and succeeded.

p. 4
03

Whether the Claimant was entitled to service pay

Holding

No

Reasoning

Section 35(6) of the Employment Act excludes employees who are members of NSSF from service pay; the Claimant exhibited his NSSF Statement proving membership.

p. 4
04

Whether the Claimant was entitled to leave pay

Holding

Yes, for 43 admitted leave days, limited to 18 months under Section 28(4)

Reasoning

The Respondent admitted 43 outstanding leave days for 2019 and 2020, and the statute caps recoverable leave to the 18 months preceding exit.

p. 4
05

Whether the Claimant proved cruel, demeaning and degrading treatment

Holding

No, but breach of Article 41(1) on fair labour practices established through unpaid wages, compensated at Kshs 100,000.00

Reasoning

The abuse allegations were unsubstantiated by evidence. However, the Respondent's breach of Section 17(1) of the Employment Act by withholding wages was itself an unfair labour practice violating Article 41(1), warranting compensation.

p. 5

Legal principles established

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  • A document marked for identification has little evidential value until formally produced
  • An employer must pay the entire amount of wages earned by an employee
  • Withholding wages constitutes an unfair labour practice and a violation of Article 41(1)

Court orders

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  1. 1.Declaration that the Respondent violated the Claimant's right to fair labour practices under Article 41(1) of the Constitution
  2. 2.Award of Kshs 100,000.00 compensation for breach of the right to fair labour practices
  3. 3.Award of Kshs 1,494,000.00 unpaid salary
  4. 4.Award of Kshs 143,333.30 unpaid leave
  5. 5.Total award of Kshs 1,737,333.30 with interest at court rates from the date of Judgment until payment in full
  6. 6.Certificate of Service to be issued within 30 days per Section 51(1) of the Employment Act
  7. 7.Respondent to bear the costs of the claim

Authorities

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Legislation

  • Employment ActSection 35(6)
  • Employment ActSection 35(6)(d)
  • Employment ActSection 28(4)
  • Employment ActSection 17(1)
  • Employment ActSection 17(10)
  • Employment ActSection 51(1)
  • Constitution of KenyaArticle 41(1)
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (3)

  • Equity Bank Limited vs Bobbin (EPZ) Limited
    (2021)
  • Jennifer Nyambura Kamau Humphrey vs Mbaka Nnadi
    (2013) eKLR
  • Kenneth Nyaga Mwige vs. Austin Kiguta & 2 others
    [2015] eKLR
Jurisdiction invoked
Employment and labour relations jurisdiction under the Constitution; reliefs anchored on Article 41(1) and the Employment Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kiboko v Osteria Group (Kenya) Limited (Cause E023 of 2022) [2023] KEELRC 2700 (KLR)", Case Analysis (2023). Cause No E023 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2700/eng@2023-10-27

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