Nzue & 3 others v Riverbank Solutions Ltd (Cause E543 of 2022) [2024] KEELRC 1842 (KLR)
The bottom line
#A Kenyan employment court ordered an employer to pay workers unpaid salaries and pension, and rejected its attempt to charge them notice pay.
What this practically means
#Executive summary
#Key legal issues
#Entitlement to unpaid salaries
1st, 2nd and 4th Claimants proved unpaid salaries; 3rd Claimant's arrears were settled
The Respondent did not dispute owing the salaries, attributing delays to COVID-19 impacts. The Claimants' testimony was supported by the evidence on record, and the Respondent had admitted settling arrears in good faith. The amounts still outstanding as admitted in testimony were awarded with interest from filing.
Unremitted pension contributions
Only the 4th Claimant's pension claim remained outstanding and the Respondent was directed to remit Kshs 181,373.52
The Respondent did not rebut the assertion that deductions were made but not remitted. The 1st and 3rd Claimants confirmed remittance, leaving only the 4th Claimant's claim of Kshs 181,373.52 unrebutted, which the Court ordered remitted within 30 days.
General damages for mistreatment
Declined as unpleaded and not flowing from the Claim
The relief was not clearly crafted and the Claimants had not pleaded mistreatment or unfair labour practices. Although the Respondent withheld salaries and pension remittances, the Claimants did not seek damages on that basis; the Court could not award damages outside the pleadings.
Respondent's Counterclaim for notice pay
Counterclaim dismissed; unconscionable to order notice pay
It was common ground that the Claimants resigned while the Respondent had failed to pay salaries and remit pensions. Given those circumstances, it would be unconscionable to require the 2nd and 4th Claimants to pay salary in lieu of notice, so the Counterclaim was declined.
Constructive dismissal raised in submissions
Extraneous and not considered as it was never pleaded
The Court noted the Claimants argued constructive dismissal extensively but had not pleaded it. Parties are bound by pleadings and submissions cannot replace evidence or pleadings; the issue therefore did not arise for consideration.
Legal principles established
#- Parties are bound by their pleadings; issues not pleaded, such as constructive dismissal advanced only in submissions, cannot be considered
- Submissions cannot take the place of evidence or pleadings
- An employer cannot rely on COVID-19 economic hardship to indefinitely withhold earned salaries and unremitted pension deductions
- It is unconscionable for an employer in breach of salary and pension obligations to claim salary in lieu of notice from departing employees
Court orders
#- 1.The 1st Claimant is awarded Kshs 15,401.20 being outstanding salary
- 2.The 2nd Claimant is awarded Kshs 270,056.56 being outstanding salary
- 3.The 4th Claimant is awarded Kshs 113,417.40 being outstanding salary
- 4.The Respondent is directed to remit pension contributions of Kshs 181,373.52 to the 4th Claimant's pension account within 30 days from the date of the judgment
- 5.Interest at court rates on the salary awards from the date of filing the suit until payment in full
- 6.The Counterclaim against the 2nd and 4th Claimants is disallowed with costs
- 7.The Respondent shall bear the costs of the Claim
- Jurisdiction invoked
- Original employment and labour relations jurisdiction (Employment and Labour Relations Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nzue & 3 others v Riverbank Solutions Ltd (Cause E543 of 2022) [2024] KEELRC 1842 (KLR)", Case Analysis (2024). Cause No E543 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1842/eng@2024-07-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.