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ELRCOtherNot stated in the judgment (Notice of Motion dated 21st May, 2025)· [2025] KEELRC 1750 (KLR)

Ouko v Kenya Chemical Workers Union (Cause E014 of 2022) [2025] KEELRC 1750 (KLR)

Employment and Labour Relations Court
17 June 2025
2,353 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that gratuity is taxable income subject to statutory deductions, and dismissed a garnishee claim that ignored those deductions.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Kisumu (Dr. Jacob Gakeri, Judge) determined the Claimant/Decree Holder's Notice of Motion dated 21st May, 2025 seeking to have a Garnishee Order Nisi made absolute against two bank accounts of the Respondent (Judgment Debtor) to satisfy a decree of 27th July, 2023 (service gratuity, four months' salary, salary in lieu of notice, certificate of service and taxed costs), part of which had been paid. The Garnishee Bank disclosed balances in the two accounts and sought its costs; the Respondent opposed the claimed outstanding sum of Kshs.1,459,143, contending the award was subject to statutory deductions of Kshs.596,780 and that only Kshs.583,220 remained outstanding, which it said had since been paid. The court framed a single issue: whether gratuity earned by an employee is taxable. Relying on Section 49(2) of the Employment Act, Sections 3 and 5 of the Income Tax Act, Court of Appeal authorities and the KRA Employers' Guide on P.A.Y.E, the court held that gratuity is employment income subject to statutory deductions. However, the applicant tendered no computation substantiating the claimed outstanding balance. The court ordered the respondent to pay its computed balance of Kshs.583,220 within seven days, bear the Garnishee's costs of Kshs.20,000, and discharged the Garnishee Order Nisi, with each party bearing its own costs of the application.

Key legal issues

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01

Whether gratuity earned by an employee is taxable

Holding

Yes. Under Section 5 of the Income Tax Act, gains or profits from employment include gratuity, and under Section 49(2) of the Employment Act payments are subject to statutory deductions

Reasoning

The court read Section 3(2)(a)(ii) and Section 5 of the Income Tax Act together with Section 49(2) of the Employment Act. It relied on Court of Appeal authorities (Kioko Joseph v Bamburi Cement; Directline Assurance v Jeremiah Wachira Ichaura; Andrew Mukite Saisi v Tracker Group) and the KRA Employers' Guide to conclude that gratuity forms part of employment income chargeable to tax and must be subjected to statutory deductions.

p. 3
02

Whether the applicant's claimed outstanding decretal balance of Kshs.1,459,143 was substantiated

Holding

No. The applicant tendered no computation and failed to account for statutory deductions and payments made, so the Order Nisi was not made absolute

Reasoning

The court noted the applicant did not provide a computation of the alleged outstanding sum or contradict the respondent's computation, and did not factor in statutory deductions. The respondent's counsel admitted the balance of Kshs.583,220 had been paid, though no particulars of payment were furnished and submissions are not pleadings. The court nonetheless ordered the respondent to pay its computed balance within 7 days and discharged the Order Nisi.

p. 5

Legal principles established

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  • Gratuity paid to an employee in respect of employment or services rendered is income subject to income tax and statutory deductions
  • Any lumpsum/terminal payment to an employee is subject to statutory deductions

Court orders

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  1. 1.The respondent shall pay the outstanding amount as per its computation Kshs.583,220.00 in a single instalment within 7 days
  2. 2.The respondent shall bear the costs of the Garnishee, Kshs.20,000.00
  3. 3.The Garnishee Order nisi granted on 22nd May, 2025 is hereby discharged
  4. 4.Parties shall bear own costs of this application
Jurisdiction invoked
Sections 1A, 1B, 3A, 38(c) and 63(e) of the Civil Procedure Act and Order 23 Rules 1, 4 and 10 of the Civil Procedure Rules (enforcement of decree by garnishee proceedings)

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, "Ouko v Kenya Chemical Workers Union (Cause E014 of 2022) [2025] KEELRC 1750 (KLR)", Case Analysis (2025). Not stated in the judgment (Notice of Motion dated 21st May, 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1750/eng@2025-06-17

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