Osedo & 15 others v Ken-Knit (Kenya) Limited (Petition 12 of 2019) (25 September 2024) (Quantum Judgment) [2024] KEELRC 2352 (KLR)
The bottom line
#Kenya's Employment Court ruled that workers whose CBA promises gratuity get it even if the employer also contributes to NSSF, awarding 16 former workers Kshs 3.27 million.
What this practically means
#Executive summary
#Key legal issues
#Entitlement to gratuity notwithstanding NSSF contributions
The Petitioners are entitled to gratuity by virtue of clause 22 of the CBA, notwithstanding that the Respondent contributed to NSSF on their behalf
Clause 22 of the CBA of 20th November 2018 expressly provides for gratuity. Relying on the Court of Appeal's decision in Board of Management Ng'araria Girls Secondary School v Kudheiha, the court held that section 35 of the Employment Act does not preclude parties from agreeing gratuity over and above NSSF. A CBA may provide superior terms vis-à-vis NSSF contributions, with NSSF deductions offset to avoid double payment.
Travelling allowance
The claim for travelling allowance fails because no contractual or evidential basis was laid for it
The court examined the 1st Petitioner's employment contract in the Respondent's bundle and found no provision for payment of travelling allowance. The Petitioners made no effort to explain why the allowance should be awarded, so the relief was declined.
Leave dues
Leave dues awarded per the Respondent's own tabulation, which identified unpaid leave for some Petitioners
Respondent's counsel conceded in submissions that some Petitioners had been paid leave dues while others had not, and the Respondent's tabulation was essentially of leave dues owed to those unpaid. The court therefore adopted the Respondent's tabulation on leave dues.
Legal principles established
#- Section 35 of the Employment Act does not preclude parties from agreeing retirement benefits or gratuity over and above the statutory NSSF arrangement
- Service pay is payable under section 35(5) only to employees not covered by social security mechanisms under section 35(6), but a CBA may provide superior terms over NSSF contributions
Court orders
#- 1.Final judgment entered in favour of the Petitioners against the Respondent in the total sum of Kshs. 3,271,566, awarded per Petitioner as set out in the table at paragraph 20 (adopting the Petitioners' tabulation on gratuity and the Respondent's tabulation on leave dues)
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over the Petition (quantum stage following the judgment of 11th June 2021)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Osedo & 15 others v Ken-Knit (Kenya) Limited (Petition 12 of 2019) (25 September 2024) (Quantum Judgment) [2024] KEELRC 2352 (KLR)", Case Analysis (2024). Petition 12 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2352/eng@2024-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.