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ELRCPartially AllowedNot stated in the extract· [2023] KEELRC 3190 (KLR)

Obonyo & 165 others v Spectre International Ltd (Cause 67 of 2019) [2023] KEELRC 3190 (KLR)

Employment and Labour Relations Court
6 December 2023
657 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kisumu employment court adopted the workers' figures of Kshs 18.9 million after the employer failed to prove its Provident Fund payments.

What this practically means

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Executive summary

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This is a consequential ruling of the Employment and Labour Relations Court at Kisumu (Radido Stephen, J) settling the sums due under the Court's judgment of 31 May 2023, in which the Court had declared that claims prior to 19 July 2016 were caught by the limitation period under section 90 of the Employment Act, 2007, and that the Respondent was liable to refund unremitted Sacco contributions and unremitted Provident Fund contributions. The parties could not agree on the computations, and after directions and submissions the Court determined the disputes between the parties' rival computations. The Court found that both the Claimants and the Respondent were required to contribute to the Provident Fund, making it incorrect and mischievous for the Respondent to compute refunds on employees' contributions alone - a position the Respondent admitted. The Respondent's assertion that Provident Fund deductions were paid directly to trustees was unsupported by any evidence adduced at the hearing. The Respondent's reliance on a 6-month period had no basis in the judgment's findings, which awarded 13 months. The Court also held that the 2017 mediation agreement formed part of the judgment, with outstanding payments payable as part of the judgment. The Court endorsed and adopted the Claimants' computations filed on 22 September 2023 in the sum of Kshs 18,965,797/72, and made no order as to costs beyond costs in the cause. The ruling was delivered virtually, dated and signed in Kisumu on 6 December 2023.

Key legal issues

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01

Correct basis for computing refunds of unremitted Provident Fund and Sacco contributions

Holding

The Claimants' computations, reflecting both employee and employer contributions and the 13-month period awarded, were adopted

Reasoning

The Court found that both parties were obliged to contribute to the Provident Fund, so the Respondent's computation factoring only employees' contributions was incorrect and mischievous. The Respondent's reliance on a 6-month period had no basis in the judgment's findings, and no evidence of direct payments to trustees was adduced. The mediation agreement was to form part of the judgment, with outstanding payments payable as part of the judgment.

p. 2
02

Evidential burden on the Respondent regarding direct payments to trustees

Holding

The Respondent failed to prove direct payments to the Provident Fund trustees

Reasoning

The Respondent asserted that deductions due to the Provident Fund were made directly to the trustees, but the Court found no evidence was placed before it during the hearing supporting such payments during the material period. The assertion therefore could not reduce the sums computed by the Claimants, and the Claimants' figures prevailed.

p. 2

Legal principles established

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  • Where both employer and employee contribute to a Provident Fund, computation of unremitted refunds must include both parties' contributions
  • A party asserting direct payments to fund trustees must place evidence of such payments before the Court

Court orders

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  1. 1.The Court endorsed and adopted the computations filed by the Claimants on 22 September 2023 in the sum of Kshs 18,965,797/72 in settlement of the sums due under the judgment delivered on 31 May 2023
  2. 2.Costs in the cause
Jurisdiction invoked
Jurisdiction under the Employment Act, 2007 (section 90 referenced); consequential jurisdiction to enforce and settle sums due under its own judgment of 31 May 2023

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Obonyo & 165 others v Spectre International Ltd (Cause 67 of 2019) [2023] KEELRC 3190 (KLR)", Case Analysis (2023). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3190/eng@2023-12-06

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