Samuel Mungai Kahiu & Peter Muriuki Njege v Kenya Breweries Limited [2019] KEELRC 1466 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT NAIROBI

CAUSE NO. 1427 OF 2014

(Consolidated with Cause No. 1426 of 2013)

SAMUEL MUNGAI KAHIU ............1ST CLAIMANT

PETER MURIUKI NJEGE...............2ND CLAIMANT

VERSUS

KENYA BREWERIES LIMITED ......RESPONDENT

JUDGMENT

1. The claimants herein pleaded that they were employed by the respondent in 1974 and 1980.

2. The 1st claimant averred that he was employed by the respondent on 3rd June, 1974 in the packaging department and at the time of termination of his services earning a salary of Kshs.215,851. 40.

3. According to the claimant he had written to the respondent seeking to be considered for early retirement scheme which the respondent had introduced.  The respondent did not respond to the request but he was verbally informed that the respondent still needed his services.

4. The claimant worked until 24th December, 2012 when his services were terminated after attaining 60 years.  He averred that he was not given the requisite 4 months’ notice of termination or payment in lieu.  Further, he was not paid gratuity at 200%.

5. The 2nd claimant pleaded that he was employed on 20th August, 1980 in the engineering department as an artisan grade A1 and at the time of termination his monthly salary was Kshs.248,688. 24.  He also claimed that he applied for the early retirement scheme but got no response.  Instead he was verbally informed that he should continue to work for the respondent.  On 4th January, 2014 his services were terminated after attaining 60 years.  The claimant also averred that he was not paid 4 months’ notice and gratuity.

6. The respondent on its part averred that the claimant’s contracts came to an end through effluxion of time.

7. By a letter dated 7th August, 2012 the claimants were notified of the retirement and advised of their last working day.  The respondent further averred that it complied with all the provisions of clause 26 of the CBA on retirement with respect to notice and payments and as such the retirement was lawful, fair and justified.

8. The respondent further averred that the claimants did not provide any proof of their request for early retirement prior to the mandatory retirement.

9. This claim revolves around whether the claimants were upon retirement entitled to 4 months’ salary in lieu of notice and gratuity.  The respondent has denied that the claimants are entitled to make such claim.  According to the respondents, the claimants were members of the respondent’s retirement benefits scheme and NSSF thus not entitled to gratuity in accordance with the provisions of section 35 (6) (a) of the Employment Act.

10. The respondent further stated that it had a gratuity provision under the East African Breweries Limited Staff Provident Fund which was terminated with effect from 1st July, 2005 and all the claimants accrued gratuity was to be transferred to the new retirement benefits scheme in the claimants’ accounts.  Further that the claimants were to elect whether to have their past gratuity in cash or retain the same in the new benefit scheme.

11. The respondent has further alleged that the claimants upon retirement were paid their terminal benefits in accordance with the existing CBA.

12. It is a cardinal rule of law of evidence that a person who alleges must prove the allegations in order for the court to make a finding in his or her favour.  As much as the claimants allege that they are entitled to four months’ pay in lieu of notice and gratuity, they have not produced any evidence to show that they are so entitled.  On the other hand the respondent has already demonstrated that the claimants’ dues upon retirement were governed by clause 26 (c) of the CBA and that the claimants were paid in accordance thereto.

13. In the circumstances the court finds and holds that the claimants have failed to prove their claim against the respondent and the same is hereby dismissed with costs.

14. It is so ordered.

Dated at Nairobi this 24th day of May, 2019

Abuodha J. N.

Judge

Delivered this 24th day of May, 2019

Abuodha J. N.

Judge

In the presence of:-

………………………………..………… for the Claimant and

…………………………………………….. for the Respondent