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ELRCPartially AllowedNot stated in judgment· [2019] KEELRC 415 (KLR)

Moses Ndereba Maigallo v TKM Maestro Limited & 2 others [2019] KEELRC 415 (KLR)

Employment and Labour Relations Court
7 November 2019
MOMaureen Onyango
518 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court awarded a dismissed employee only the salary arrears his employer admitted in writing, rejecting all other claims because he never testified.

What this practically means

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Executive summary

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The Claimant was employed by the Respondent on 4th December 2008 as a project supervisor (later described as Site Supervisor) and alleged that his employment was terminated on 12th June 2017 without justifiable grounds. By a Statement of Claim filed on 31st October 2017, he sought a declaration that the termination was unfair and unjust, maximum compensation of twelve months' pay, pay in lieu of leave and of three months' notice, service pay, non-remitted NSSF dues, housing and leave allowances, unpaid statutory allowances, terminal benefits, a certificate of service, and costs. He relied on Sections 41, 44, 45 and 49 of the Employment Act and on the decisions in Gilbert Mariera Makori v Equity Bank Limited and Mary Chemweno Kiptui v Kenya Pipeline Company Limited. He also claimed salary arrears of Kshs.604,500, allegedly confirmed in an email dated 25th June 2014, contending that company directors have a statutory duty to pay salaries. The Respondent, though served, neither entered appearance nor filed a response. When the matter came up on 30th April 2019, the Claimant elected to proceed by written submissions. The court held that the Claimant had made only general prayers in his pleadings and, having not testified, had not proved them; those prayers were dismissed for want of proof. However, the court noted the Respondent's admission, by the email of 25th June 2014, of salary arrears of Kshs.604,500. Judgment was entered for the Claimant against the Respondents jointly and severally for that admitted sum, with costs to the Claimant and interest at court rates from the date of judgment. The claim therefore succeeded only in part.

Key legal issues

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01

Unfair termination

Holding

Not determined on the merits because the claimant did not testify and the prayers were not proved

Reasoning

The respondent did not enter appearance or file a defence. The claimant opted to proceed by written submissions without testifying. The court found that the claimant's pleadings contained only general prayers which, absent testimony, remained unproved and were dismissed for want of proof. The unfair termination arguments under Sections 41, 44, 45 and 49 of the Employment Act therefore did not yield relief.

p. 2
02

Admitted salary arrears

Holding

Judgment entered for the admitted sum of Kshs.604,500 on account of salary arrears

Reasoning

By an email dated 25th June 2014 the respondent admitted and offered to pay Kshs.604,500 as salary arrears. In the absence of a defence and given the admission, the court entered judgment for that sum jointly and severally against the respondents, with costs and interest at court rates from the date of judgment.

p. 2

Legal principles established

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  • A claimant who does not testify in court cannot prove general prayers in the pleadings, which must fail for want of proof
  • An admitted sum, such as salary arrears acknowledged in writing by the respondent, is recoverable even where the respondent does not enter appearance

Court orders

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  1. 1.Judgment entered for the claimant against the respondents jointly and severally for the admitted sum of Kshs.604,500/=
  2. 2.Respondent to pay claimant's costs
  3. 3.Decretal sum to attract interest at court rates from date of judgment
  4. 4.Claimant's other prayers dismissed for want of proof
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (claim for unfair termination under Sections 41, 44, 45 and 49 of the Employment Act)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Moses Ndereba Maigallo v TKM Maestro Limited & 2 others [2019] KEELRC 415 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/415/eng@2019-11-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.