Kenneth Otieno Siro v Florence Manea Muyundo t/a Ray of Health Centre and Community Centre [2019] KEELRC 766 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT NAIROBI

CAUSE 1108 OF 2018

(Before Hon. Lady Justice Maureen Onyango)

KENNETH OTIENO SIRO.....................................................................CLAIMANT

VERSUS

FLORENCE MANEA MUYUNDO T/A RAY OF HEALTH

CENTRE ANDCOMMUNITY CENTRE.........................................RESPONDENT

JUDGMENT

The Claimant herein, acting in person, filed a Memorandum of Claim on 2nd July 2018. He avers that he was employed by the Respondent as a security guard in 2004 and worked until his resignation on 5th December 2016. It is his averment that the Respondent has failed to pay his terminal dues despite having agreed to pay him Kshs. 48,000 during a mediation session conducted by the Kenya Human Rights Commission.

He seeks the following reliefs:

(i) The sum of Kshs.288,000. 00 as particularised in the claim.

(ii) Costs of this suit.

(iii) Interest in (i) and (ii) above.

(iv) Any other relief as the Court may deem just.

The Respondent did not enter appearance in the suit or file a defence thus the Claim proceeded as an undefended claim with the Claimant testifying on his own behalf.

The Claimant testified that he was employed by the Respondent in 2004 earning a salary of Kshs.8,000.  That he was not registered with NSSF and NHIF. He testified that on 5th December 2016 he wrote to the Respondent informing her of his resignation and was later stopped from working on 14th January 2017. He testified that despite discussions with the Respondent on the payment of Kshs.48,000 as his terminal dues, he was not paid the said amount. He urged the Court to award the reliefs sought.

Determination

The  uncontested facts of this case are that the Claimant was employed by the Respondent vide the employment contract dated 8th May 2004 on fixed term contract which commenced on 8th May 2006 to 8th August 2006.  The contract was thereafter renewed severally. The Claimant resigned from employment on 5th December 2016.

The Respondent neither entered appearance nor filed a defence thus the Claimant’s evidence was uncontroverted.

The issue for determination is whether the Claimant is entitled to terminal dues in the sum of Kshs.288,000 being service pay at Kshs.48,000, leave pay Kshs.67,200 and house allowance at Kshs.172,800.

Service Pay

The Claimant is entitled to service pay for the period of employment being 10 years from 2004 to 2016 by virtue of Section 35(5) as he was not a member of NSSF or any other retirement or gratuity scheme calculated at  Kshs.8,000/26 x 15 days x 12 years = Kshs.55,384. 60.

Leave Pay

The letter from the respondent dated 17th January 2011 states that the Claimant was entitled to 7 days off starting the year 2011 and compensation for holidays worked. The letter did not make any reference to leave days.  Therefore the Claimant’s claim for leave pay is valid. However, this is to be calculated for the period between 8th May 2004 when he commenced employment to the date when he left employment being 14th January 2017 at 21 days per year as follows Kshs.8,000/26 x 252 days = Kshs.77,538. 50.

House Allowance

The Claimant prayed for house allowance of Kshs.172,800.  However

the Contracts of employment dated 8th May 2004 and 1st October 2006 provide that his salary was consolidated and all-inclusive.

Although the salary was expressed to be all inclusive, the amount paid was below the minimum rate which was as follows –

2004  – 4,335 + 15% House allowance  = 4,985. 25

2005  – 4,638 + 15% House allowance  = 5,333. 70

2006  – 5,195 + 15% House allowance  = 5,974. 25

2007  – 5,195 + 15% House allowance  = 5,974. 25

2008  – 5,195 + 15% House allowance  = 5,974. 25

2009  – 6,130 + 15% House allowance  = 7,049. 50

2010  – 6,743 + 15% House allowance  = 7,754. 45

2011  – 7,586 + 15% House allowance  = 8,723. 90

2012  – 8,579. 80 + 15% House allowance  = 9,866. 80

2013  – 9,780. 95 + 15% House allowance  = 11,247. 00

2014  – 9,780. 95 + 15% House allowance  = 11,247. 00

2015  – 10,954. 70 + 15% House allowance  = 12,597. 90

From the foregoing the claimant was underpaid from 2011 when the minimum gazetted consolidated salary was as follows –

2011

(8,723. 90 less paid shs.7,500) x 12 = Kshs.14,686. 80

2012

(9,866. 80 less paid shs.8,000) x 12 = Kshs.22,401. 60

2013 and 2014

(11,247 less paid shs.8,000) x 24 = Kshs.77,928

2015 and 2016

(12,597. 80 less paid shs.8,000) x 24 = Kshs.110,349. 60

Total underpayments Kshs.225,366. 60/=.

Conclusion

Judgment is entered for the claimant as follows –

1. Service pay for 12 years Kshs.55,384. 60

2. Leave pay  Kshs.77,538. 50

3. House allowance underpayments (calculated as underpayments of consolidated salary)from 2011 – 2016 Kshs.225,366. 60

Total Award Kshs.358,290. 00

The Claimant is awarded costs of the suit and interest at court rates from date of judgment till payment in full.

DATED, SIGNED AND DELIVERED AT NAIROBI ON THIS 27TH DAY OF SEPTEMBER 2019

MAUREEN ONYANGO

JUDGE