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ELRCPartially AllowedELRC Cause No. E713 of 2023· [2024] KEELRC 1224 (KLR)

Mburu v Medecines Sans Frontieres (Cause E713 of 2023) [2024] KEELRC 1224 (KLR)

Employment and Labour Relations Court
23 May 2024
3,703 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled an employer cannot deduct an employee's salary to recover money lost from excessive work phone bills.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a Social Worker under successive fixed-term contracts, was issued a work mobile phone. Her Safaricom post-paid bills for September and October 2022 (Kshs.82,730.26 and Kshs.121,616.40) were deemed excessive by the Respondent, which surcharged her Kshs.159,199.17 after a disciplinary process, later reduced on appeal to Kshs.80,000/=, with deductions commencing in May 2023. The Claimant sued for a declaration that the recovery was wrongful, refund of Kshs.10,000/= deducted for May to July 2023, interest and costs. The Respondent justified the deductions under Section 19(1)(b) of the Employment Act, 2007 and pleaded estoppel by consent. The court framed three issues: lawfulness of the deductions, consent, and entitlement to relief. It held that Section 19(1)(b) covers damage to or loss of the employer's property, not financial loss, and that the Respondent failed to prove the usage was excessive or that a Kshs.5,000/= cap applied or was communicable to the Claimant's uncapped post-paid line; the memo on capping post-dated the events and no formula was used to compute the surcharge. The Claimant's email requesting deductions begin in May 2023 was held not to constitute consent. Judgment was entered for the Claimant: a declaration that the recovery of Kshs.80,000/= was wrongful, refund of all monies deducted with interest at court rates, with each party bearing its own costs.

Key legal issues

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01

Lawfulness of salary deductions under Section 19(1)(b) of the Employment Act, 2007

Holding

Financial loss from alleged excessive phone usage is not recoverable as a wage deduction; the provision covers only damage to or loss of property

Reasoning

A plain reading of Section 19(1)(b) shows its focus is the employer's property damaged or lost through the employee's wilful default. Excessive telephone bills constitute financial loss, not loss of property. Moreover, the Respondent had no formula for computing the Kshs.80,000/= surcharge, and Rika J. in Sifuna similarly ordered refunds of deductions not recoverable under the provision. The deductions were therefore unlawful and refundable.

p. 5
02

Whether the alleged excessive phone usage was proved and whether the employer had a valid reason

Holding

The excessive use was not proved; the line had no enforceable cap and the employer produced no usage benchmark, so there was no valid reason to deduct

Reasoning

The Claimant's post-paid line had no capping enforceable by her; only the employer and service provider could enforce capping. The memo on capping post-dated the alleged overuse, and RWI admitted no formula or prior usage records were produced to show the bills were excessive. The employer also failed to follow up on the Claimant's query to Safaricom about auto-renewal subscriptions. The alleged excessive use was thus unproved.

p. 7
03

Whether the Claimant consented to the deductions

Holding

The email of 16th February 2023 requesting deferment of deductions was not consent but a plea for financial accommodation

Reasoning

The email was written after the disciplinary hearing, the warning letter and the dismissal of the appeal, when the Respondent had already decided to recover Kshs.80,000/=. The court found it expressed no agreement that the deductions were lawful, merely a request to begin in May 2023 to help the Claimant adjust. The earlier payment plan she had declined to sign also showed absence of consent.

p. 8

Legal principles established

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  • Section 19(1)(b) of the Employment Act permits deduction only for damage to or loss of the employer's property, not for financial loss occasioned by alleged employee negligence
  • Where an employer fails to prove excessive phone usage or a valid capping policy, it has no valid reason to deduct monies from an employee's salary
  • An employer must enforce capping on a post-paid line it provides to an employee; it cannot expect the employee to enforce a cap of which she has no notice

Court orders

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  1. 1.Declaration that recovery of Kshs.80,000/= from the Claimant was wrongful
  2. 2.Respondent shall refund monies deducted from the Claimant's salary with interest at court rates from date hereof till full payment
  3. 3.Each party to bear own costs

Authorities

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Legislation

  • Employment Act, 2007Section 19(1)(b)
  • Employment Act, 2007Section 2
  • Employment Act, 2007Part IV
  • Constitution of Kenya, 2010Article 41
  • Constitution of Kenya, 2010Article 41(2)(b)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (4)

  • Kennedy Mutua Mwangagi V Madison Insurance Co. (K) Ltd
    (2020) eKLR
  • Denis Wamalwa Sifuna V African Line Terminal & Logistics Ltd
    (2020) eKLR
  • Liech V Sameer Agricultural & Livestock (K) Ltd (now) Devyan Food Industries (K) Ltd
    (2022)
  • Serah Njeri Mwobi V John Kimani Njoroge
    (2013) eKLR
Jurisdiction invoked
Employment and labour relations dispute under Article 162(2) of the Constitution (Employment and Labour Relations Court jurisdiction)

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, "Mburu v Medecines Sans Frontieres (Cause E713 of 2023) [2024] KEELRC 1224 (KLR)", Case Analysis (2024). ELRC Cause No. E713 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1224/eng@2024-05-23

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