Brian M Lewela v Boolmat EA Co. Ltd & Habo Group of Companies [2014] KEELRC 205 (KLR)

REPUBLIC OF KENYA

IN THE INDUSTRIAL COURT OF KENYA

AT MOMBASA

CAUSE NO. 223 OF 2014

BRIAN M. LEWELA …................................................................CLAIMANT

VERSUS

1.      BOOLMAT E.A CO. LTD

2.      HABO GROUP OF COMPANIES ….............................RESPONDENTS

J U D G M E N T

INTRODUCTION

1)      The claimant has brought this suit against the respondent seeking accrued salary and compensation for off days worked all totalling to     ksh.523,333. 40.  The respondents did not file any defence although they appointed a counsel in the suit on 9/7/2014.  The suit was heard on 15/7/2014 when the claimant testified as CW1.

CLAIMANTS CASE

2)      CW1 told the court that he was employed by the respondents on 4/4/2013   as the General Manager for Mamba Village.  He was issued with an     appointment letter dated 23/4/2013 which he produced as exhibit 1.

He was entitled to a salary of Kshs. 100,000 per month under the  employment contract, but CW1 was never paid anything between April and 17/8/2013 when he terminated the employment contract by a resignation  letter (Exh.2)  being 7 days notice because he was still on probation .      CW1 was   given the payslips for the said period but nothing was credited   to his bank account as salary (exh 3 1,b,c,and d).

3)      He prayed for ksh.456,666. 70 as his salary arrears.  He further prayed for  ksh.66,666. 70 as compensation for 20 off days worked.  According to      him, the off days were to be accumulated for compensation during the off   season between the month of September and October.

In total CW1 prayed for ksh.523,333. 40 plus costs and interest.

ANALYSIS AND DETERMINATION.

4)      The issue arising for determination from the pleadings, evidence and the submission filed is whether CW1 is entitled to the relief sought.

It is not disputed that CW1 was employed by the respondent vide a   contract of employment dated 23/4/2013 (exh. 1).  It is also not disputed       that CW1 was entitled to a monthly salary of ksh.100,000 per month and  that he worked continuously between 4/4/2013 and 17/8/2013 when he    resigned.  It has also not been denied that CW1 was never paid his salary   during his employment period.

5)      Under Section 17(1) an employer is bound to pay his employee the   entire salary when it fells due as per subsection (1).  Under Section 18(2) (c)     salary for an employee employed for a month becomes   due   at the end of each month. Consequently the court grants the prayer       for salary arrears   as prayed being kshs.456,666. 70 for the period between   4/4/2013 and  17/8/2013.

6)      Though the prayer for pay in lieu of the accrued off days is not contested,   the claimant has neither pleaded the particulars of the off days he worked    nor has he strictly proved the sum prayed for.  It is cardinal principle of civil   procedure that special damages must not only be pleaded but must also    be strictly   proved.  In that regard, the prayer for ksh.66,660. 70 for off   days worked is   dismissed.

DISPOSITION

7)      For the reason stated above, judgment is hereby entered for the claimant   against the respondents jointly and severally for ksh.456,666. 70 plus costs  and interest.

Orders accordingly.

Dated, Signed and delivered this 10th October  2014.

O. N. Makau

Judge