Owino v Gems and Industrial Minerals Limited (Cause E017 of 2023) [2024] KEELRC 2521 (KLR)

The court compared the parties' payment schedules and found a prima facie case for the salary claim up to September 2022. However, the respondent proved on a balance of probability that the claimant absconded from October 2022, evidenced by a 12-day break in August, sporadic attendance in September and cessation of attendance in October. The claimed reason was a toxic work environment after a new officer took over his roles.

Clause 5 of the contract provided a gross monthly salary of Kshs 150,000. The claimant admitted being allocated a house but left due to discomfort. Section 31 of the Employment Act obliges the employer to provide reasonable housing or pay house allowance; paying a gross salary covering allowances satisfied this duty. The house was a gratuitous benefit.

The claimant served 21 months, not two complete years, so service pay was limited to 15 days' pay for one year. Leave was computed at 1.75 days per month under section 28 of the Employment Act, totaling 36.75 days less the 12 days taken in August 2022, leaving 24.75 days payable.

There was no enforceable agreement for hire of the claimant's own car at Kshs 45,000 per month; the rate was unilaterally fixed and the ownership undisclosed. However, the respondent consented to and paid car hire for February–May 2022, so only June, July and September 2022 were valid claims.

The court found the claimant was not solely to blame for failing to meet the 5000 metric ton target; the respondent failed to fund the project adequately and to implement geological assessment reports. There was no evidence of an agreement to refund capital. The borehole allegations (denied community access, marriage to landowner's daughter, short depth) lacked proof, and the drilling contract was with Simba Drilling Company, not the claimant.