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ELRCDismissedNot stated in the judgment (application dated 26th November 2024 arising from a judgment delivered on 20th September 2024)· [2025] KEELRC 636 (KLR)

Mayukuvu v Kenol Kobil Limited & another (Employment and Labour Relations Cause 13 of 2018) [2025] KEELRC 636 (KLR)

Employment and Labour Relations Court
4 March 2025
HWHellen Wasilwa
1,085 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 refused to boost an ex-employee's terminal dues payout because he never proved the exact amount, and NSSF membership barred extra benefits.

What this practically means

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Executive summary

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The Claimant, Stephen Wekati Mayukuva, filed a notice of application dated 26th November 2024 seeking assessment of terminal dues awarded in a judgment delivered on 20th September 2024 by Hon. Justice Wasilwa, in which he succeeded in his claim for unfair termination and was awarded one month's pay in lieu of notice, overtime, seven months' salary as compensation, terminal dues, costs and interest, totalling Kshs. 739,005. He proposed that terminal dues be computed as Kshs. 59,309 divided by 30 days, multiplied by 15 days and by 21 years of service, totalling Kshs. 622,744.50, contending the award had not been quantified and the application was brought without delay. The Respondent, through Sarah Muturi, its Human Resources Business Partner, opposed the application. It deponed that terminal dues had been computed and paid at termination in April 2018, that particulars of terminal dues were never pleaded or proved at trial, and that the Court, having rendered its final decision, was functus officio; the proper recourse was an appeal. The Court considered the pleadings and held that, although terminal dues were awarded based on the contract of employment, the exact figure was never stated by the Claimant. As the Claimant was a member of NSSF, section 35(6)(d) of the Employment Act, 2007 barred any further benefits unless clearly stated, and his gratuity claim equally failed under section 35(6)(b), which applies only to gratuity or service pay schemes established under a collective agreement. The application to review was accordingly dismissed, with no order of costs.

Key legal issues

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Whether the terminal dues awarded in the judgment of 20th September 2024 could be assessed at Kshs. 622,744.50

Holding

The application was dismissed. The Court held that the Claimant's exact terminal dues figure was never stated in the pleadings, and as an NSSF member he was not entitled to service pay or gratuity under sections 35(6)(d) and 35(6)(b) of the Employment Act, 2007.

Reasoning

The Court noted it had awarded terminal dues based on the contract of employment, but the exact figure was never stated by the Claimant. From the pleadings, the Claimant was a member of NSSF. Section 35(6)(d) of the Employment Act, 2007 bars any further benefits unless clearly stated, and section 35(6)(b) excludes gratuity unless a gratuity or service pay scheme exists under a collective agreement. Neither applied, so the assessment sought was unsupported.

p. 3

Legal principles established

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  • An employee who is a member of NSSF is not entitled to service pay or other benefits beyond those clearly stated, by virtue of section 35(6)(d) of the Employment Act, 2007
  • Gratuity as part of terminal dues is not payable where the employee is not a member of a gratuity or service pay scheme established under a collective agreement (section 35(6)(b) of the Employment Act, 2007)

Court orders

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  1. 1.The application to review/assess terminal dues is dismissed
  2. 2.No order of costs
Jurisdiction invoked
Inherent jurisdiction of the Employment and Labour Relations Court to assess and review its own awards (application for assessment of terminal dues awarded in the judgment of 20th September 2024)

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, "Mayukuvu v Kenol Kobil Limited & another (Employment and Labour Relations Cause 13 of 2018) [2025] KEELRC 636 (KLR)", Case Analysis (2025). Not stated in the judgment (application dated 26th November 2024 arising from a judgment delivered on 20th September 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/636/eng@2025-03-04

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