Makau (Suing as the Legal Representative of the Estate of Daniel Kiplangat Ng’etich (Deceased)) v DAC Aviation (EA) Limited (Cause E826 of 2022) [2025] KEELRC 2486 (KLR)
The bottom line
#A Kenyan court awarded a late engineer's widow his terminal dues, per diem and air ticket costs because the employer produced no evidence of payment.
What this practically means
#Executive summary
#Key legal issues
#Terminal dues on expiry of contract
Terminal dues of Kshs 558,599 as stated in the Respondent's own letter of 25th November 2019 remain outstanding and are payable
The Respondent's letter referenced 'Expiry of Contract' expressly notified the deceased that his net terminal dues were Kshs 558,599, payable on his last day of employment. Despite denying the claim, the Respondent produced no evidence that it settled the sum. The court therefore found no reason to doubt that the terminal dues remained outstanding and awarded them.
Unpaid per diem for extended rotation in Afghanistan
Per diem of $2,700 approved by the Respondent's Flight Operations officer and acknowledged by its officer was never paid and is due
An email dated 17th September 2019 from Fred Lwika, Flight Operations Kabul Afghanistan, set out the per diem due to the deceased for his full rotation, and Kennedy Kilonzo acknowledged it. The Respondent's denial was bare and unsupported by any evidence of payment. The court found the amount due as prayed.
Reimbursement of air ticket purchased after cancellation by line manager
The Respondent was bound under Clause 5.3 of the contract to reimburse the $505.9 the deceased personally spent on his return flight
The deceased was on official assignment in Afghanistan; his line manager cancelled his ticket 10 hours before departure, and he purchased his own flight to Kenya for $505.9. Clause 5.3 required the company to reimburse reasonable business expenses incurred in the course of employment. The Respondent did not dispute these facts, and no evidence of reimbursement was tendered.
House allowance
The claim for house allowance fails because the contractual salary was 'gross pay', which is inclusive of house allowance
Schedule A of the contract described remuneration as 'gross pay'. Relying on the Black's Law Dictionary definition of gross income and the decision in Samson Omechi Ongera v Tusker Mattresses Limited, the court held that gross pay includes house allowance, so no separate house allowance was payable.
Legal principles established
#- 'Gross' monthly pay comprises basic pay together with house allowance
- An employer who fails to adduce evidence to rebut a claim that is supported by documentation cannot defeat that claim by bare denial
Court orders
#- 1.The Claimant is awarded the sum of Kshs 558,599.00 being the deceased's terminal dues
- 2.The Claimant is awarded $2,700 being unpaid per diem
- 3.The Claimant is awarded $505.9, being air ticket expenses incurred by the deceased from Afghanistan to Kenya
- 4.Interest on the amounts in (a), (b) and (c) at court rates from the date of filing the suit until payment in full
- 5.The Respondent shall bear the costs of the suit
- Jurisdiction invoked
- Original employment and labour relations jurisdiction of the Employment and Labour Relations Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Makau (Suing as the Legal Representative of the Estate of Daniel Kiplangat Ng’etich (Deceased)) v DAC Aviation (EA) Limited (Cause E826 of 2022) [2025] KEELRC 2486 (KLR)", Case Analysis (2025). Cause No E826 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2486/eng@2025-09-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.