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ELRCPartially AllowedPetition 12 of 2019· [2024] KEELRC 2352 (KLR)

Osedo & 15 others v Ken-Knit (Kenya) Limited (Petition 12 of 2019) (25 September 2024) (Quantum Judgment) [2024] KEELRC 2352 (KLR)

Employment and Labour Relations Court
25 September 2024
1,748 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a quantum judgment of the Employment and Labour Relations Court at Eldoret (Onyango, J) in Petition 12 of 2019, following the judgment of 11th June 2021 in which a differently constituted bench directed the Respondent to recalculate the Petitioners' terminal benefits taking into account all concluded CBAs in force during their employment. The parties filed rival tabulations and could not agree; the court heard oral submissions. The Respondent contended that the claims were unproved, that some leave dues had been paid, that no basis existed for travelling allowance, and that gratuity was unavailable because the Petitioners benefited from NSSF and gratuity was said not to be provided for in the CBA. The Petitioners relied on clause 22 of the CBA of 20th November 2018 and urged adoption of their accountant's tabulation. The court held that clause 22 entitled the Petitioners to gratuity, applying the Court of Appeal's holding in Board of Management Ng'araria Girls Secondary School v Kudheiha that section 35 of the Employment Act does not preclude agreement on gratuity over and above NSSF. It adopted the Petitioners' tabulation on gratuity and the Respondent's tabulation on leave dues, declined the claim for travelling allowance for want of any contractual or evidential basis, and entered final judgment for the Petitioners in the total sum of Kshs. 3,271,566. No costs order was recorded.

Key legal issues

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01

Entitlement to gratuity notwithstanding NSSF contributions

Holding

The Petitioners are entitled to gratuity by virtue of clause 22 of the CBA, notwithstanding that the Respondent contributed to NSSF on their behalf

Reasoning

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.

p. 5
02

Travelling allowance

Holding

The claim for travelling allowance fails because no contractual or evidential basis was laid for it

Reasoning

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.

p. 4
03

Leave dues

Holding

Leave dues awarded per the Respondent's own tabulation, which identified unpaid leave for some Petitioners

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 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

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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, "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.