Njue v Masaku & another (Employment and Labour Relations Appeal E010 of 2023) [2024] KEELRC 1097 (KLR)
The bottom line
#A Kenyan employer must pay an employee's full salary during suspension unless it has quantified claims and a legal basis to withhold it.
What this practically means
#Executive summary
#Key legal issues
#Entitlement to salary withheld during the suspension period (January 2021 to January 2022)
The appellant was entitled to the full withheld salary of Kshs. 358,904 less statutory deductions
The appellant testified she was unpaid during suspension while statutory deductions were remitted, and defence witnesses admitted non-payment justified by a Board resolution to recover unauthorised salary increments from her. No minutes of the Board were produced; recovery should have been directed to employees who received the increments; the sums were unquantified; there was no counterclaim; and the appellant had been cleared of the allegations, leaving the recovery without legal basis.
Entitlement to retirement benefits
No pension was proved, but the appellant is entitled to her NSSF retirement benefits
The court found no evidence supporting a claim to pension under the Pensions Act, so the appellant's submissions on that point failed. However, since the appellant was registered with the NSSF and the employer remitted contributions regularly even during the salary withholding, she was held entitled to payment of retirement benefits under the NSSF Fund rules and regulations.
Duty of the trial court to determine all prayers before it
The trial court erred by failing to determine the claims for the withheld suspension salary and retirement benefits
The impugned judgment was silent on the prayer for salary for the suspension period and on the prayer for retirement benefits, even though evidence existed on both. The court on appeal held that a trial court must consider every claim and either reject or grant it with reasons, and the omission constituted an abdication of judicial duty, justifying appellate intervention.
Unchallenged findings of unfair termination
The finding of unfair termination and the awards of notice pay, compensation and June–August 2020 salary stood unchallenged
The appeal did not challenge the trial court's holding that the indefinite suspension amounted to constructive and unfair dismissal, nor the awards for notice, compensation and salary for June, July and August 2020. The only issues falling for determination were the suspension-period salary and retirement benefits, which the appellate court determined afresh on the evidence.
Legal principles established
#- A trial court must consider every claim before it and either grant or reject it with reasons; silence amounts to abdication of judicial duty
- On a first appeal, the court re-evaluates the evidence and makes its own independent conclusions
- An employer may not withhold an employee's salary to recover unquantified sums allegedly owed to other employees without a counterclaim or legal basis
Court orders
#- 1.Notice pay of Kshs. 27,608.00
- 2.Compensation for unfair termination of Kshs. 220,864.00
- 3.Salary for June, July and August 2020 of Kshs. 82,824.00
- 4.Salary for January 2021 to January 2022 of Kshs. 358,904.00 less statutory deductions (total award Kshs. 690,200.00)
- 5.Payment of retirement benefits by the NSSF under the Fund Rules and regulations
- 6.Costs of the appeal and the suit in the lower court to the appellant
- 7.Interest at court rates from the date of the judgment
- On appeal from
- Chief Magistrate's Court
- Not stated
- Jurisdiction invoked
- First appellate jurisdiction of the Employment and Labour Relations Court over an appeal from the Chief Magistrate's Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njue v Masaku & another (Employment and Labour Relations Appeal E010 of 2023) [2024] KEELRC 1097 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1097/eng@2024-05-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.