Kitaa v Aga Khan Education Services [2024] KEELRC 1106 (KLR)

Kitaa v Aga Khan Education Services (Cause 126 of 2017) [2024] KEELRC 1106 (KLR) (8 May 2024) (Judgment)

Neutral citation: [2024] KEELRC 1106 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Cause 126 of 2017

MA Onyango, J

May 8, 2024

Between

Benson Kitaa

Claimant

and

Aga Khan Education Services

Respondent

Judgment

1. The Claimant herein instituted the instant Claim vide the Memorandum of Claim dated 19th December, 2016 as amended on 19th July, 2022 seeking the following reliefs:a.A declaratory order to issue that the Claimant’s termination from employment was unfair, wrongful, illegal unlawful null and void.b.An order for payment of the Claimant’s terminal dues and benefits as a result of the unlawful dismissal from duty in the following terms; -I. Days worked and not paid for the month of November 2015– 39,877. 96 x 27 including basic pay, House allowance and responsibility allowance Kshs.35,877. 96II. Notice Pay Kshs.29,864. 00III. Accrued leave days 17 days Kshs.19,213. 09IV. Unpaid medical allowance 9,600 x 3 Kshs.28,800. 00V. Unpaid house allowance Kshs.106,600. 00VI. Unpaid overtime Kshs.1,425,600. 00VII. Service pay 29,864 x 21 Kshs.627,144. 00VIII. Gratuity 29,864 x 21 Kshs. 627,144. 00IX. Compensation for unlawful termination Kshs.358,368. 00TOTAL Kshs.3,407,931. 05c.An order for payment of compensation and/or damages arising out extra responsibilities outside the scope of the Claimant’s employment on such terms as the Court may deem fit to grant.d.Any other relief the Court shall deem fit to grant.e.Cost of the suit.f.Interest on (b) above from the time of filing the suit until payment in full.

2. The Claimant case is that he was employed by the Respondent on 31st September 1992 in the position of a messenger at a gross monthly salary of Kshs.1,760/- inclusive of house allowance which increased over the years.

3. On 1st January, 2013, the claimant was elevated to the position of support staff supervisor and his salary increased to Kshs.20,000/- with house allowance of Kshs.5,000/- and responsibility allowance of Kshs.13,000/- bringing his total consolidated salary to Kshs.38,000/- per month.

4. The claimant was also entitled to other employment benefits as stipulated in his employment contract including an enrolment into a Retirement Benefits Scheme, medical Benefits, Annual leave of 25 days and sick leave.

5. On 27th November, 2014 the claimant’s employment terms were reviewed to a salary of Kshs.24,000/- with house allowance of Kshs.5,000/- and responsibility allowance of Kshs.10,000/- bringing his total consolidated salary to Kshs.39,864. 40/-.

6. The Claimant avers that on 7th November, 2015 he was issued with a show cause letter in relation to an alleged incident that occurred on 31st October, 2015 where the respondent allegedly lost some properties. He was notified of investigations by the respondent that had revealed the loss of 17 rolls of decker rolls dispenser tissue that went missing from the respondent’s store between 6th October, 2015 and 5th November 2015.

7. The claimant denied that there was any loss as alleged. He was subsequently placed on suspension without pay between 7th November, 2015 until 21st November, 2015. The claimant was subjected to a disciplinary hearing on 27th November, 2015. His employment was terminated by letter dated 27th November, 2015 on the alleged ground of negligence for the alleged loss of stocks.

8. The claimant faulted the disciplinary process as flawed on the grounds that he was not accorded an opportunity to be accompanied to the disciplinary hearing contrary to the provisions of section 41 of the Employment Act, 2007 and averred that the termination was unlawful and illegal.

9. The Claimant urged this Honourable Court to find merit in his Claim and allow it in terms of the reliefs sought therein.

10. In response to the Claim, the Respondent filed a Statement of Response dated 24th February, 2017 and filed in Court on 15th March, 2017, in which the Respondent confirmed having engaged the Claimant and terminating the Claimant’s employment vide its letter dated 27th November, 2015 in which the reasons for the termination were stated.

11. The respondent contends that the claimant was accorded a fair disciplinary procedure having been invited to a disciplinary hearing in line with the mandatory provisions of section 41 of the Employment Act, 2007. Further, that upon reaching and communicating its decision to terminate the claimant’s employment, he was allowed to exercise his right to appeal against the decision which he did vide the claimant’s letter dated 3rd December, 2015. An appeal hearing was scheduled for 7th December, 2015. The hearing was rescheduled to 5th January, 2016 following the claimant’s failure to attend the hearing. The appellate panel considered the claimant’s appeal and upheld the decision to terminate the claimant’s employment.

12. The respondent denied that the termination was unfair, unjustified, pre meditated, illegal and unlawful as alleged by the claimant. It further argued that the claimant is not entitled to any of the reliefs sought in his claim.

13. On the issue of house allowance and overtime, the Respondent contended that the claims are time barred by dint of the provisions of section 90 of the Employment Act, 2007 and urged this Court to dismiss the claims.

14. The respondent further averred that the claimant received a monthly responsibility allowance on account of any overtime worked and thus the claim for overtime lacked basis.

15. In conclusion the respondent urged this Honourable Court to find the claim frivolous and an abuse to the Court process and urged this Court to dismiss it in its entirety with costs to the respondent.

Evidence 16. The matter proceeded for hearing on 5th May, 2022 with the Claimant testifying as CW1 and the Respondent calling one witness, RW1 to testify on its behalf. Parties were thereafter directed to file their respective submissions to the Claim herein.

Claimant’s Case 17. The Claimant, CW1 adopted his witness statement filed in Court on 25th January, 2017 as his evidence in chief. He further relied on his list and bundle of documents also dated 19th December, 2016 and filed in Court on 25thn January, 2017 and the supplementary list dated 4th May, 2022 as exhibits in this matter. In his statement CW1 reiterates the averments made in his Amended Memorandum of Claim.

18. On cross examination CW1 stated clause 3 of the CBA provided that he was no longer eligible for service gratuity having been a member of the pension scheme. CW1 also stated he joined the Respondent’s medical scheme by dint of clause 4 of the CBA.

19. CW1 further testified that the responsibility allowance did not cater for any overtime even though the same was increased as indicated in the respondent’s letter dated 23rd February, 2015. He testified that the letter communicated that he was eligible to compensation for extra hours worked.

20. CW1 confirmed having been sent on suspension pending investigation on the alleged loss of items in the store. He further confirmed having been responsible for keeping records in the store. He admitted that he attended a disciplinary hearing following an invite from the Respondent. CW1 further testified that he was accompanied by one, Simon Muchiri to the disciplinary hearing.

21. CW1 testified that he denied any wrong doing at the hearing, he however admitted to having been guilty of not keeping proper records. He testified that subsequent to the disciplinary hearing he received a termination letter. CW1 further confirmed having lodged an appeal to the Respondent’s decision to terminate his services. The decision to terminate his employment was upheld on appeal.

22. CW1 confirmed having received his terminal dues from the Respondent at the time of separation being notice pay, accrued leave days, payment of salary for the days worked and part of gratuity, the rest having been paid to his Sacco on his instructions. CW1 confirmed receiving a cheque of Kshs.64,208/- and that another cheque of Kshs.128,417/- was issued to TABIBU Sacco on his instruction. CW1 also confirmed having signed a discharge voucher to confirm receipt of Kshs.64,208/- as full and final settlement.

23. On re-examination CW1 stated that his employment contract as signed provided under Clause 3 on retirement benefits for the deposit of gratuity into the pension account, which according to him was not done by the Respondent. He further testified that there was no mention in the contract to the effect that responsibility allowances covered for overtime. He testified that the responsibility allowance was paid on account of performing additional roles such as messengerial work and driver.

24. With regard to the signing the statement on investigations CW1 testified that the statement was prepared by David Odhiambo and that he only signed the same after he was requested to do so. He stated that he did not know the statement would be used against him. CW1 denied any wrong doing.

25. On payments received CW1 testified that the payments were made after the instant case was lodged before the Court and that the computation does not include Salary for the month of November 2015.

26. CW1 urged this Honourable Court to find his Claim with merit and to allow it as prayed.

Respondent’s Case 27. The Respondent witness, Constance Mwoni testified as RW1. She also adopted her witness statement dated 14th March, 2017 and filed in Court on 15th March, 2017 as her evidence in chief. She adopted and relied on the Respondent’s filed List and Bundle of Documents as exhibits. RW1 reiterated the averments made in the Statement of Response.

28. RW1 further testified that the Claimant was paid all his terminal dues at the time of separation from the Respondent and that payment was made through the Claimant’s bank.

29. On cross examination RW1 testified that the termination of the Claimant’s employment was valid, that the Respondent conducted its independent investigations and found the claimant culpable. RW1 further testified that the Respondent did not call David Odhiambo, who conducted the investigations as a witness in this matter for the reason that he had left the Respondent’s employment. She testified that no goods could be removed from the store without the Claimant’s knowledge.

30. RW1 testified that the Claimant together with Mr. Ali, a support staff and the head teacher all had access to the store and that no person had access to the store in the Claimant’s absence. She further testified that in the Claimant’s absence Ali would record any items leaving the Respondent’s store.

31. RW1 maintained that the termination of the Claimant’s employment was for a valid reason and that due procedure was followed. She testified that the Claimant was holding a supervisory role and that the CBA did not apply to him. She testified that the CBA only applied to support staff.

32. On further cross examination RW1 testified that the Claimant is not entitled to payment of overtime as sought given that he received responsibility allowances that covered for extra responsibilities. She however agreed that the responsibility allowance is distinct from overtime allowance and that the employment contract does not indicate that the responsibility allowance was to cover overtime.

33. The parties thereafter filed and exchanged their written submissions.

Claimant’s Submissions 34. In his submissions the Claimant maintained that the termination of his employment was unlawful, unfair and wrongful as the Respondent failed to comply with the mandatory provisions of sections 41, 43, 45 and 47 of the Employment Act, 2007. To buttress this argument the Claimant cited and relied on findings in the case of Young (EA) Limited v Samuel Gikumba Mbiuki [2020] eKLR.

35. The Claimant further submitted that there was no valid reason for the termination contrary to the Respondent’s contention. Further that the issue of validity of reason for termination is a factual issue which the Respondent’s witness could not testify on. The Claimant maintained that the only credible witness who could attest to this fact was Mr. David Onyango, the security manager, whom the Respondent failed to call as a witness to testify on its behalf. To buttress this argument the Claimant relied on the findings in the Court of Appeal decision in the case of Philip Amwayi Wokinda Rift Valley Railways Limited [2018] eKLR.

36. The Claimant further submitted that as clearly brought out at the hearing he was not the only person with access to the Respondent’s store as two other persons had access to the store, Mr. Ali and the head teacher. The Claimant denied that the items in the store could not be removed in his absence. It is on this basis that the Claimant argued that he could not be held personally responsible for any loss (if at all) at the Respondent’s store. He argues that the Respondent has failed to prove the validity of reasons for his termination. For emphasis the Claimant cited and relied on the Court’s findings in the case of Peter Wangai Vs Egerton University (2019) eKLR.

37. The Claimant further submitted that the Respondent failed to follow fair procedure as provided under Section 41 of the Employment Act, 2007 in the manner in which the termination was conducted. The Claimant submitted that the Respondent unfairly withheld the findings of its investigations in breach of the rules of natural justice thus leading to an unlawful and unfair termination process. For emphasis the Claimant relied on the findings in the case of Bakery Confectionery Food Manufacturing & Allied Workers Union (K) Vs Wrigley Company (EA) Limited, ELRC Cause 1519 of 2015.

38. The Claimant further submitted that no evidence was adduced by the Respondent to prove payment of salary during the period he was on suspension. He maintained that he is entitled to such pay and urged this Honourable Court to allow his claim for the unpaid salary during the period he was on suspension. To fortify this argument, the Claimant relied on the Court findings in the case of Kenya Hotels & Hotels Workers Union Vs Mattan Issa Restaurant (2021) eKLR.

39. The Claimant further submitted that being a unionisable employee, he is entitled to the benefits enumerated in the Collective Bargaining Agreement. The Claimant contended that he was never elevated to a managerial position and remained unionisable and was entitled to benefits under the Collective Bargaining Agreement. In particular, the claimant maintained that he was entitled payment of gratuity by dint of Clause 3 of the CBA. He submitted that no evidence had been adduced by the respondent to confirm compliance with this provision.

40. In conclusion the Claimant submitted that she had proved his case on a balance of probabilities as required under law and is therefore entitled to the reliefs sought therein. He urged this Honourable Court to allow his Claim in terms of the reliefs sought therein.

Respondent’s Submissions 41. The Respondent in its submissions maintained that it had just cause to terminate the Claimant’s employment by dint of the provisions of section 45 of the Employment Act, 2007. That the termination of the Claimant’s employment was on account of the loss of 17 rolls of tissue from its stores. The loss was attributed to negligence on the part of the Claimant. For emphasis the respondent relied on the Court findings in the case of Sospeter Kioko Munguti v Nestle Kenya Limited [2013] eKLR.

42. The Respondent argued that the Claimant was in the habit of removing items from the store without following stipulated authorization procedures and recording and had been warned on several occasions by the Respondent’s head teacher.

43. The Respondent submitted that the Claimant held a managerial position as the overall supervisor and caretaker as evidenced by his job description and was therefore not eligible to benefits in the collective bargaining agreement. The respondent contended that the claimant’s employment agreement dated 1st January, 2013 was not governed by the terms of the CBA. For emphasis the respondent cited the court findings in the case of Alice Wambuku Kago v East African Women’s League Harrison House Management Committee [2013] eKLR.

44. The Respondent submitted that due process was followed in the process of termination, the Claimant having been subjected to a disciplinary process in line with the mandatory requirements as set out in section 41 of the Employment Act, 2007. Reference was made to the Court findings in the Court of Appeal decision in Philip Amwayi Wokinda Vs Rift Valley Railways Limited (supra) and the High Court decisions in the cases of Duran Ligaga Amuyunzu Vs Mater Hospital (2020) eKLR and Stanley Mombo Amuti Vs Kenya Anti – Corruption Commission (2019) eKLR and Wilson Mutabari Mworia Vs Barclays Bank of Kenya Limited (2021) eKLR.

45. The Respondent further submitted that it did notify the Claimant of the allegations levelled against him and accorded him sufficient time to prepare his defence before the disciplinary hearing thus the termination was both substantively and procedurally fair. To fortify this argument, the Respondent cited and relied on the Court findings in the cases of Philip Njuguna Vs Medical Relief International (Merlin) (2019) eKLR and Henry Isaiah Onjelo Vs Maridadi Flowers Limited (2015) eKLR.

46. On the Claim for notice pay, the respondent submitted that the Claimant’s employment was not governed by the CBA and thus the Claimant is not entitled to the 6 months’ notice pay as sought. Further, that the claim was untenable as the termination was on account of gross negligence, which is subject to summary dismissal under section 44 of the Employment Act. The respondent submitted that it paid 1 month’s salary in lieu of notice in good faith.

47. On the claim for gratuity, the respondent submitted that the Claimant is not entitled to the same as his employment contract was not governed by the terms of the CBA at the time of separation. To buttress this argument, the respondent cited and relied on the findings in the case of Stephen K. Kachila v Bamburi Cement Limited [2015] eKLR where the trial court declined a claim for gratuity on the ground that it was not a term of employment that could be read into the Claimant’s contract of service.

48. The Respondent submitted that the claim for overtime was an afterthought as no claim for payment of the same had been made earlier. The respondent submitted that the claim should be dismissed. For emphasis the Respondent cited and relied on the findings in the case of James Kyama v Muthaiga Golf Club [2022] eKLR. It is further submitted that no evidence was adduced by the Claimant to support the claim for overtime worked.

49. The Claim for days worked and not paid in November 2015 was denied on grounds that the same was paid less the 4 days not worked as evidenced by the final dues computation dated 26th October, 2020.

50. On the claim for service pay, the respondent submitted that the Claimant was a member of a pension scheme and therefore not entitled to any service pay as per the provision of Section 35 (5) of the Employment Act as read with clause 3 of the Employment Agreement dated 1st January, 2013. The respondent further submitted that the claim was abandoned by the Claimant who failed to submit on the same.

51. The Respondent submitted that the claim for 12 months’ compensation was unjustified and unexplainable having demonstrated that the termination of the Claimant’s employment was both substantively and procedurally fair. For emphasis the respondent relied on the Court of Appeal decision in the case of Kiambaa Dairy Farmers Co-operative Society Limited v Rhoda Njeri & 3 Others [2018] eKLR.

52. In conclusion the Respondent urged the Court to find the claim devoid of merit and to dismiss it in its entirety with costs to the Respondent.

Analysis and Determination 53. From the pleadings, evidence and submissions on record the issues for determination are whether the Claimant’s terms of employment were covered by the CBA or not, whether the termination of the Claimant’s employment met both the procedural and substantive test and if the Claimant is entitled to any of the prayers sought.Whether or not the Claimant’s terms of employment were covered by the CBA

54. The evidence on record show that the Claimant was initially employed as a messenger under the CBA terms of service. By an agreement dated 1st January 2013 the Claimant was engaged as Support Staff Supervisor. Clause 2 of the Agreement states:Employee's base salary shall be Kshs. 20,000/- with a house allowance of Kshs. 5000/= per calendar month. Employee will qualify for an additional responsibility allowance of 10,000 (Kenya Shillings Ten Thousand) per month. All remuneration, including value of benefits, will be subject to statutory deductions. As employee is no longer covered under Collective Bargaining Agreement (CBA), employee will not receive any benefits indicated in the CBA. (Increment effective 1st September, 2012). [emphasis added]

55. It is clear from the said clause that the Claimant’s terms were not covered by the CBA at the time of separation.

Whether the termination of the Claimant’s employment met both the procedural and substantive test 56. The Claimant was issued with a show cause letter dated 20th November, 2015 in which he was required to show cause why disciplinary action should not be taken against him for loss of property from the Junior School Store which he was in charge of. He was further required to explain why he had not responded to another show cause letter issued to him earlier dated 14th September, 2015. He responded to the show cause letter by an undated letter, a copy of which is in page 63 of his bundle of documents. In the response he denied the allegations.

57. By letter dated 24th November, 2015 the Claimant was invited for a disciplinary hearing on 25th November, 2015 at 2pm. He was advised of his right to be accompanied by an employee of his choice. He attended the disciplinary hearing and was accompanied by a colleague.

58. At the disciplinary hearing the Claimant admitted that he failed to record items of stores that he issued which was against the instructions he had been given. He further admitted failure to respond to the show cause letter dated 14th September, 2015.

59. The Claimant’s employment was terminated by letter dated 27th November, 2015. The letter of termination is reproduced below:The Aga Khan Academy, NairobiAKANJS/AD/0004November 27th, 2015Benson KitaaSupport Staff Supervisor— Junior SchoolAga Khan AcademyNairobiDear BensonRe: Termination Of ServiceOn Saturday October 31st, 2015 the school lost property from the Junior School Store, as a result of which investigations were launched to determine who was responsible for the loss, so that appropriate action could be taken.The investigations revealed that between October 6th 2015 and November 5th 2015, 17 rolls of Decker Rolls Dispenser tissue paper, went missing from the store, never to be traced, and you had no explanation as to how this happened.It is also on record that you had been issued a letter dated 14th September 2015, to show cause why disciplinary action should not be taken against you, for a range of misdemeanors related to negligent performance of duty, and to date, more than two months later, you have not replied to that letter.You were issued a second show cause letter on November 20th 2015, which you replied to, and a disciplinary hearing held on November 25th 2015, in which you were given an opportunity to defend yourself.During the hearing, you admitted having issued toilet tissue rolls from the store, without recording in the stores ledger book, despite having been advised strongly several times, against the habit by the Head Teacher.As to why you have not responded to the first show cause letter two months down the line, even after being reminded about the Facilities the same several times by, the Human Resources Manager, you said you had been waiting for a report fromManager, a claim which cannot be accepted because the show cause letter was very clear, that a reply was needed within 5 days. Also you could not present in the meeting, any evidence that there was a report you were expecting from the Facilities Manager.In view of the above, it is clear that you are guilty of negligent performance of duty an offence punishable by summary dismissal. However, due to your long service to the school, the Management has decided to extend some lenience to you and hereby terminate your service with the school with effect from today November 27th 2015. organize to hand over your duties and any school property that could be in your possession to the Head Teacher and obtain a Clearance Certificate duly completed and signed, after-which your final dues will be paid to you, less any amount of money owed by you to the school, including the cost of loss in this case.Please note that you have a right to appeal against this decision to the CEO within 7 days of receipt of this letter should you feel that the action taken against you is not fair.Yours faithfullySignedClaudio OtienoHuman Resources ManagerCc: Chief Executive Officer Internal AuditorHead Teacher — Junior School Security Officer

60. It is evident from the forgoing that there was valid reason for the termination of the Claimant’s employment and the procedure followed complied with the provisions of section 41 of the Employment Act. The only questionable issue is the notice given for the disciplinary hearing which from the record appears to have been less than 24 hours.

61. The Claimant was further informed of his right of appeal which he exercised. The appeal was however not successful.

62. From the foregoing I find that the termination of the Claimant’s employment was substantially in compliance with the law and was therefore lawfully undertaken. It is further noted that the termination was with full benefits.

Whether the Claimant is entitled to any of the prayers sought 63. On 26th October, 2020 the Claimant was paid the following terminal dues:Final DuesGratuity upto Dec 31st 200513 years 3 months 216,984. 54Gratuity from Jan 2006 toDec 31st 2012 – 6 years 9 months 95,800. 72Notice pay as per New Contract > 1 month 24,864. 00Accrued Leave Days – 17 days 16,907. 52Less 4 days Nov 2015 Salary > from 27th – 30th 5,638. 15Gratuity payable to the employee 348,918. 64Amount Due to the Employee 348,918. 64Less P.A.Y.E 106,294. 00Net Due to the employee 242,624. 64Less Advance Paid o 04/02/2016 Chq 6872 50,000. 00Balance of payment 192,624. 642/3 pay to Utabibu Sacco 128,416. 431/3 pay to the Employee 64,208. 21

64. It is noted that this was long after the suit was filed.

65. The Claimant prayed for various remedies which I now consider as follows:a.Notice Pay Kshs. 29,864. 00This was paid as per schedule of payments above. The notice pay is however supposed to be based on gross pay as per section 35 and 49(1) of the Employment Act. The Claimant is awarded the difference in the sum of Kshs. 39864-29864=10,000. 00. I award the Claimant Kshs. 10,000. 00. b.Accrued leave days 17 days Kshs. 19,213. 00This was also paid in the schedule above.c.Unpaid medical allowance Kshs. 9,600 x 3 Kshs. 28,800. 00The Respondent states that this is not payable as the Claimant was joined the Respondent’s medical scheme.According to the Claimant’s agreement dated 1st January 2013, he was entitled to medical insurance benefit as follows:Medical Insurance BenefitsMedical Insurance cover is provided for self. Coverage limits vary from year to year depending on availability of coverage from the insurer and the performance of the scheme. Staff should obtain details of their medical cover eligibility and other related information from the Head of School.Medical scheme membership cards will be issued to members who are required to produce them by approved doctors, chemists, dentists, opticians or hospitals. If a staff member leaves AKES,K employment, his / her membership to the scheme automatically terminates at the time of leaving. Such an employee will be responsible for returning her / his card on behalf of himself and family to the H.R Department through the Head of school.The Claimant having been a member of the medical insurance scheme, he is not entitled to medical allowance.d.Unpaid house allowanceAs per agreement, the Claimant was paid a consolidated salary inclusive of house allowance with his salary every month.e.Unpaid overtimeThe Claimant’s agreement at paragraph 11 provided as follows:Hours of WorkEmployee's working hours shall be determined by the AKAN, JS from time to time, depending upon school operation and its needs. However, Employee shall also be expected to put in additional working hours as appropriate to fulfil her responsibilities, to meet established objectives. As employee is now a salaried employee, will not be entitled to overtime pay. [Emphasis added]The Claimant is thus not entitled to overtime payment.f.Service pay and GratuityThis is not payable based on paragraph 3 the Claimants agreement which provided as follows:Retirement Benefit SchemeA compulsory pension scheme will begin as at 1st January 2013. Accumulated gratuity up until December 31st 2012 will be deposited directly into employee's pension account. Because employee is receiving a pension benefit, employee is no longer eligible for service gratuity.Employees are expected to contribute 5% of their basic pay into the scheme and AKESK contributes 7. 5% of the employee's basic pay.

66. The terminal dues for the Claimant as set out above included both the service pay for the period served under the CBA terms and pension benefits under the agreement.The Respondent however did not demonstrate how the gratuity and service pay was tabulated. According to clause 20 of the CBA attached by the Claimant from page 36 at page 41, service gratuity was to be based on the employee’s wage at the time of departure. According to the agreement dated 1st January 2013 the pension was supposed to have been deposited into the Claimant’s pension account which it is evident was not done. Had this been done the pension would have been earning interest over time.

67. The Claimant was further entitled to be a member of a contributory pension scheme from 1st January 2013. It is evident that the Claimant was never enrolled into the pension scheme which was to replace the service gratuity. This is confirmed by the tabulation of payments made to the Claimant in October, 2020 which shows that the Claimant was paid gratuity for the period up to 31st December, 2012. For these reasons the Claimant is entitled to service gratuity based on his last salary for the entire period worked being 1992 to November, 2015 at one months’ pay per year worked being Kshs. 29864x21=627,144. This is payable less the amount already paid being Kshs. 216,984. 00 and Kshs. 95,800 leaving a balance of Kshs. 314,360 which I award the Claimant. I will award interest on this sum from date of part payment being October, 26th 2020 to date of payment.g.CompensationHaving found that the notice of the disciplinary hearing was not reasonable while the rest of the process was compliant with the law, I award the claimant nominal compensation of 1 months’ gross salary being Kshs. 39,864. 00h.Compensation for extra responsibilitiesThe Claimant’s agreement provided for a responsibility allowance of Kshs. 10,000. The Claimant is thus not entitled to any other payment for extra duties.

68. The Claimant submitted that he was denied salary during suspension. The Respondent stated in its defence that the Claimant was suspended from duty by letter dated 6th November, 2015 pending investigations. The letter of suspension does not state that the suspension was without pay. The Claimants agreement did not provide for suspension and the Respondent did not prove that the Claimant was subject to any other terms of service providing for suspension without pay. This being the case the Claimant is entitled to salary for the month of November, 2015 which the Respondent did not prove it paid. I award him at Kshs. 39,864. 00

69. The Respondent shall pay the Claimant’s costs. Interest shall accrue on all payments awarded to the Claimant at court rates from the date of part payment on all items except compensation which will attract interest from the date of judgment.

DATED, SIGNED AND DELIVERED VIRTUALLY ON THIS 8TH DAY OF MAY, 2024MAUREEN ONYANGOJUDGE