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ELRCOtherCause No E534 of 2022· [2023] KEELRC 3060 (KLR)

Kaniu v Family Bank Limited (Cause E534 of 2022) [2023] KEELRC 3060 (KLR)

Employment and Labour Relations Court
30 November 2023
898 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court confirmed employers can deduct P.A.Y.E tax from termination payouts, even when a court-approved settlement states one gross figure.

What this practically means

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Executive summary

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This Employment and Labour Relations Court claim, filed against three respondents, proceeded only against the principal respondent after the claims against the Central Bank of Kenya and the Capital Markets Authority were withdrawn by consent on 3rd January 2023. On 6th June 2023 the remaining parties recorded a consent judgment under which the respondent would pay the claimant six months' salary as compensation for unlawful termination, Kshs. 10,200,000, with each party bearing its own costs. When the parties returned to court on 7th July 2023, the consent could not be adopted as full and final judgment because the respondent had paid only Kshs. 7,145,216, having deducted Kshs. 3,054,783 as P.A.Y.E tax. The court directed the parties to file affidavits and submissions on the deduction. The respondent, through its Company Secretary and Chief Legal Officer Eric Murai, justified the deduction, relying on Court of Appeal and ELRC authority that awards under Section 49para 2 of the Employment Act are subject to statutory deductions. The claimant maintained he was entitled to the full consent amount, arguing the consent was a binding contract variable only on grounds such as fraud, collusion or mistake. The court, bound by Kioko Joseph v. Bamburi Cement Limited and Andrew Mukite Saisi v. Tracker Group of Companies Limited, upheld the deduction, held that taxation of a judgment sum does not vary a consent judgment, entered full and final judgment recording the gross sum as paid, marked the claim fully settled, ordered each party to bear its own costs, and closed the file on 30th November 2023.

Key legal issues

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01

Whether P.A.Y.E tax is deductible from an award of compensation under Section 49[2] of the Employment Act, including a consent judgment award

Holding

Yes - the award is subject to statutory deductions notwithstanding that the parties consented to a gross figure

Reasoning

The Court found two binding Court of Appeal decisions on point: Kioko Joseph v. Bamburi Cement, holding that an employer must recover appropriate tax from lump-sum termination payments whether voluntary or obligatory; and Andrew Mukite Saisi v. Tracker Group, holding that absence of express tax provision in a consent does not exempt payment from taxation and that deduction is not a variation of the consent. The Claimant's contractual-framing submissions could not displace this binding precedent, so the Respondent's deduction of Kshs. 3,054,783 was upheld.

p. 3
02

Whether upholding the tax deduction varies the consent judgment as a binding contract

Holding

No - the deduction does not vary the consent judgment

Reasoning

The Claimant argued the consent was a binding contract, variable only on grounds such as fraud, collusion, illegality or mistake. The Court of Appeal in Andrew Mukite Saisi had expressly rejected the identical argument, stating the complaint that taxation amounted to variation of a consent judgment was baseless. Being bound, this Court held the consent remained intact; the gross sum of Kshs. 10,200,000 was deemed paid, with the net of Kshs. 7,145,216 received by the Claimant after statutory deduction.

p. 2

Legal principles established

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  • An employer has an obligation to recover the appropriate tax from any lump sum amount payable to an employee on termination, whether the payment is voluntary or obligatory
  • Payments under a judgment or consent that do not expressly provide for tax remain subject to taxation, and such deduction does not amount to variation of the consent

Court orders

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  1. 1.It is recorded that the Respondent has paid to the Claimant 6 months' salary as compensation for unlawful termination amounting to Kshs. 10,200,000
  2. 2.The said amount has been subjected to P.A.Y.E tax deduction in the amount of Kshs. 3,054.783, with the net amount paid to the Claimant at Kshs. 7,145,216
  3. 3.The Claim is marked as fully settled, with each Party to bear its own costs
  4. 4.The file is closed

Authorities

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Legislation

  • Employment ActSection 49[2]
  • Employment ActSection 19[1][f]
  • Income Tax ActSection 3[1]
  • Income Tax ActSection 3[2][a]
  • Income Tax ActSection 5[2]
  • Income Tax ActSection 37[1]
  • Kenya Revenue Authority Employer's Guide on P.A.Y.Enot specified
  • Electronic Case Management Practice Directions, 2020Practice Direction 6[2]

Cases cited (8)

  • Kioko Joseph [suing as the Legal Representative of the estate of Joseph Kilinda] v. Bamburi Cement Limited
    [2017] e-KLR
  • DPL Festive v. Elijah Ochieng' Rakuru
    [2022] e-KLR
  • Hosea Njeru Kagondu v. Kenya Union of Commercial, Food and Allied Workers
    [2012] e-KLR
  • Galgalo Jarso Jillo v. Agricultural Finance Corporation
    [2021] e-KLR
  • S.M.N v. Z.M.S. & 3 others
    [2017] e-KLR
  • National Bank of Kenya v. Pipe Plastics Sankolot [K] Limited and Another
    [2001] e-KLR
  • Mumias Sugar Co. Limited & Another v. Beatrice Akinyi Omondi
    [2016] e-KLR
  • Andrew Mukite Saisi v. Tracker Group of Companies Limited
    [2020] e-KLR
Jurisdiction invoked
Original employment and labour relations jurisdiction; consent judgment recorded in the Court under the Employment Act (Section 49[2])

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Kaniu v Family Bank Limited (Cause E534 of 2022) [2023] KEELRC 3060 (KLR)", Case Analysis (2023). Cause No E534 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3060/eng@2023-11-30

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