Ngigi v Kenya National Union of Teachers (KNUT); Teachers Service Commission (TSC) (Interested Party) (Employment and Labour Relations Cause E6459 of 2020) [2024] KEELRC 615 (KLR)
The bottom line
#Kenya's Employment Court awarded a former KNUT branch secretary Kshs 1.6 million for unremitted pension and unpaid salary, but refused gratuity claims unsupported by a signed contract.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent was liable for unremitted pension (31%) and WCPS (2%) contributions deducted from the Claimant's salary
The Respondent deducted the contributions but failed to remit them; the Claimant was awarded Kshs 996,037/50
The payslips showed deductions of 31% allegedly for the Director of Pensions. The Interested Party's letter of 17.09.2020 showed only Kshs 20,473.20 was remitted, and it demanded the balance of Kshs 996,037.50 to process retirement benefits. The Respondent adduced no contrary evidence, so the claimant's evidence stood unchallenged and liability was established.
Whether the Claimant was entitled to service gratuity
Declined - gratuity is not automatic and the claimant's supporting document was unsigned and unauthentic
Gratuity is payable only where contract, collective agreement or practice provides for it. Although the Respondent's Remuneration Packages note provided 31% payable after every 2½ years, that document was unsigned and the court held it was not authentic and could not be relied upon to calculate gratuity or terminal benefits.
Whether the Claimant was entitled to unpaid salaries for July, August and December 2019
Granted, as the Respondent tendered no evidence of payment
An employee is entitled to pay for work done in the absence of contrary evidence. The respondent neither filed a response nor appeared, so no evidence of payment of the salaries was tendered; the claim for Ksh. 603,243 formed part of the total award of Kshs 1,599,280/50 with interest.
Legal principles established
#- The Employment Act does not make payment of gratuity mandatory; gratuity must be a term of contract, collective agreement or employer practice
- Uncontroverted evidence of a claimant, where a defendant tenders no evidence, remains unchallenged but must still be proved on a balance of probability
Court orders
#- 1.Award of unremitted pension and WCPS contribution of Kshs 996,037/50
- 2.Refusal of service gratuity as not proved/provided
- 3.Refusal of terminal benefits and leave days as based on an unauthentic unsigned document
- 4.Award of unpaid salary for July, August and December 2019
- 5.Total award of Kshs 1,599,280/50 plus interest at court rates from the date of filing suit until full payment
- 6.Costs of the suit awarded to the Claimant
- Jurisdiction invoked
- Original employment and labour relations jurisdiction of the Employment and Labour Relations Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ngigi v Kenya National Union of Teachers (KNUT); Teachers Service Commission (TSC) (Interested Party) (Employment and Labour Relations Cause E6459 of 2020) [2024] KEELRC 615 (KLR)", Case Analysis (2024). Employment and Labour Relations Court Claim dated 8th December 2020 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/615/eng@2024-03-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.