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ELRCDismissedNot stated in judgment· [2024] KEELRC 1849 (KLR)

Magondu v NK Brothers (Cause E731 of 2022) [2024] KEELRC 1849 (KLR)

Employment and Labour Relations Court
12 July 2024
3,501 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed a retired employee's claim because he could not prove his salary or wrongful retirement, while the employer's own overpayment counterclaim was also refused.

What this practically means

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Executive summary

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The claimant, employed by the respondent from March 1968 and rising from mason to supervisory rank, retired on 1st August 2020 after approximately 52 years of service. He claimed he was asked to retire by the Managing Director, alleged a monthly salary of Kshs 117,000 paid irregularly in arrears, and sought notice pay of Kshs 234,000, service pay of Kshs 2,581,184 and salary arrears of Kshs 410,000, plus compensation for wrongful loss of employment. The respondent maintained his gross salary was Kshs 62,995 (net Kshs 50,000), that he retired voluntarily at his own request, and that it paid Kshs 4,462,816 in total - Kshs 1,130,000 in instalments before retirement, Kshs 2,332,816 acknowledged in a discharge letter of 23rd September 2020, and a Kshs 1,000,000 token of appreciation. By counterclaim, the respondent sought refund of Kshs 1,130,000 as an overpayment, damages and costs. The court found the dispute was over quantum, not the legality of the retirement, since the claimant admitted retiring voluntarily and never denied the discharge letter. The claimant failed to prove the alleged salary of Kshs 117,000 or any arrears, while the respondent proved payslips, statutory deductions and bank deposits. Even on service pay calculated under clause 19(a) of the applicable CBA, the respondent had overpaid by some Kshs 2,060,607. The claim was dismissed with no order as to costs, and the counterclaim was in the same spirit disallowed.

Key legal issues

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01

Quantum of the claimant's salary at retirement

Holding

The claimant failed to prove his alleged salary of Kshs 117,000; the respondent's evidence of payslips, KRA and NSSF records and bank deposits of Kshs 50,000 was accepted

Reasoning

The claimant alleged a consolidated salary of Kshs 117,000 paid in arrears over up to six months, but produced no payslips and could not explain the respondent's monthly bank deposits of Kshs 50,000. The respondent produced sample payslips for January to April 2020, KRA tax deductions for 2017, 2018 and 2020, NSSF contributions and bank statements, substantiating its case that gross pay was Kshs 62,995.

p. 7
02

Whether the retirement/termination was wrongful

Holding

The retirement was voluntary and not wrongful; the dispute was only over quantum

Reasoning

The claimant admitted in evidence that he retired voluntarily at age 72 at the director's request, and never denied signing the discharge letter of 23rd September 2020 acknowledging Kshs 2,332,816 as full final settlement. No written notice of termination or retirement was issued by either party, but the claimant did not prove wrongful termination.

p. 6
03

Whether terminal dues were fully paid

Holding

The respondent paid Kshs 4,462,816 in total, exceeding the service pay payable under clause 19(a) of the CBA by about Kshs 2,060,607

Reasoning

Even calculating service pay on the respondent's basic salary of Kshs 62,995 at 22 days per completed year over 52 years yields approximately Kshs 2,402,209. The respondent paid Kshs 1,130,000 before retirement, Kshs 2,332,816 on retirement, and a further Kshs 1,000,000 token of appreciation, exceeding the entitlement. The payments predated the demand letter.

p. 7
04

The respondent's counterclaim for overpayment

Holding

The counterclaim was disallowed notwithstanding the finding of overpayment

Reasoning

Although the court found the respondent had paid about Kshs 2,060,607 above the contractual service pay, it was satisfied the respondent handled the claimant with respect and paid an adequate package in recognition of long service, and in the same spirit declined to allow the counterclaim for refund of Kshs 1,130,000 or damages for tarnished reputation.

p. 7

Legal principles established

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  • The burden of proof in civil claims rests on the party who alleges and expects the court to find in their favour
  • Courts act on evidence, not feelings, and will be reluctant to interfere in a long employment relationship absent proof of violation of rights

Court orders

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  1. 1.The claimant's memorandum of claim is dismissed
  2. 2.No order as to costs
  3. 3.The respondent's counterclaim is not allowed
Jurisdiction invoked
Jurisdiction as employment and labour relations court, asserted in the pleadings; no specific constitutional or statutory provision cited in the judgment

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, "Magondu v NK Brothers (Cause E731 of 2022) [2024] KEELRC 1849 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1849/eng@2024-07-12

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