Ndwiga v Kathageri Youth Polytechnic (Employment and Labour Relations Appeal E001 of 2024) [2025] KEELRC 77 (KLR)
The bottom line
#A Kenyan court awarded a long-serving accounts clerk service pay for 14 years but threw out her wage claim because she never pleaded or proved the details.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appellant is entitled to award of service pay/gratuity
- 2.Whether the appellant is entitled to an award of under paid salary
- 3.Who should bear costs of the appeal
Key legal issues
#Entitlement to service pay/gratuity
Appellant proved entitlement to service pay under section 35(5) of the Employment Act; 15 days' pay per year of service applied, giving Kshs.49,000 for 14 years
The court noted an illegible NSSF statement but a 4th April 2022 agreement between the respondent and the union acknowledging 14 years of NSSF deductions without remittance. On a balance of probability service pay was due under section 35(5). No written rate evidence existed, but the court adopted 15 days' pay per year, the severance rate under section 40, as reasonable, following the Elijah Kipkoros Tonui case.
Claim for underpaid wages
Claim fails; underpayment not pleaded with particulars (place of station, applicable wage zones, monthly differentials) nor proved by evidence
The memorandum of claim only pleaded underpayment contrary to regulated minimum wage with a lump sum of Kshs.1,561,728 without particulars or formula. The appellant failed to plead her workplace's location or zone, the applicable minimum wages from 2006-2022, and adduced no monthly evidence of underpayment. Written submissions could not improve the pleadings as they are neither pleadings nor evidence. The trial court's dismissal was affirmed.
Legal principles established
#- On a first appeal the court must re-evaluate the evidence and reach its own independent conclusion, making allowance for not having seen or heard the witnesses
- An employee whose contract is terminated under section 35(1)(c) of the Employment Act is entitled to service pay for every year worked
- A claim for underpayment, being special damage, must be specifically pleaded and proved; submissions cannot cure defective pleadings
Court orders
#- 1.One month notice Kshs.7,000.00
- 2.Compensation Kshs.70,000.00
- 3.Service pay Kshs.49,000.00 (total award Kshs.126,000.00 less statutory deductions)
- 4.Half costs of the appeal to the appellant
- 5.Interest at court rate from date of filing the suit
- 6.Costs awarded by the trial court not disturbed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Magistrates' Court (ELRC subordinate)
- Jurisdiction invoked
- First appeal to the ELRC under its appellate jurisdiction from the subordinate court
Relief refused
#Claim for underpaid wages (Kshs.1,561,728)
Not specifically pleaded with particulars nor proved by evidence; written submissions are neither pleadings nor evidence
Service pay based on minimum wage of Kshs.16,296
Court applied 15 days' pay per year of service instead, based on redundancy rate under section 40 Employment Act
Costs
Appellant awarded half costs of the appeal; costs awarded by the trial court not disturbed
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
the impugned judgment is varied to read as follows: a. One month notice…………………Kshs.7,000.00 b. Compensation………………………Kshs.70,000.00 c. Service pay……………………Kshs.49,000.00 Kshs.126,000.00
the appeal partially succeeds, and the impugned judgment is varied
written submissions are neither pleadings or evidence
I am satisfied that the appellant had proved on a balance of probability that she was entitled to payment of service pay under section 35 (5) of the Employment Act
I find that a rate of 15 days’ pay per year of service is reasonable in this case
Issues in the judgment
#Case title and case number are not stated in the judgment excerpt; parties are referred to only as appellant and respondent
Gender inconsistency in the judgment - the appellant is referred to as 'she' but also as 'his'
Conflicting termination dates - judgment states compulsory leave in July 2020 and dismissal in July 2022 in the respondent's submissions, while the appellant's claim suggests non-recall after November 2020 reopening
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mwabaka v Bungoma Branch Manager, Kenya Farmers Association Limited & another (Appeal E018 of 2023) [2025] KEELRC 1677 (KLR)[2025] KEELRC 1677 (KLR)5 Jun 2025
Cite this brief
#Cite this brief
Caselaw, "Ndwiga v Kathageri Youth Polytechnic (Employment and Labour Relations Appeal E001 of 2024) [2025] KEELRC 77 (KLR)", Case Analysis (2025). Not stated in judgment excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/77/eng@2025-01-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.