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ELRCPartially AllowedNot stated on the face of the extract (ELRC cause in which orders of 13th March 2019 were issued)

James Wafula Wenyaa v County Government of Machakos & another [2021] KEELRC 1487 (KLR)

Employment and Labour Relations Court
9 February 2021
2,051 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan employer who refuses to give an itemised pay statement loses—the court simply adopts the employee's own figures, here Kshs 11.77 million.

What this practically means

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Executive summary

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The claimant, Dr James Wafula Wenyaa, filed an amended notice of motion dated 26th October 2020 under sections 16, 20 and 87 of the Employment and Labour Relations Court Act, seeking tabulation of his award at Kshs 11,773,570 by way of an itemized pay statement under section 20 of the Employment Act, 2007, conviction of the respondents' payroll officers under section 16(4), and punitive and exemplary damages with interest. The claimant relied on orders issued on 13th March 2019 reinstating his half salary and directing payment of arrears, orders served on and acknowledged by the respondents' advocates. The respondents, through a replying affidavit sworn by their Chief Officer, Dr Joel Mwoya, denied contempt, asserting that the claimant had been reinstated on 23rd July 2020; that COVID-19 prevented staff from preparing the itemized pay statement; and that payment of the award depended on budgeting and approval by the County and National Treasuries. The court framed two issues: determination of the particulars of the itemized pay statement, and whether the payroll officers were guilty of an offence under section 16(4). It held that section 20 imposes a mandatory duty on employers, that compliance with court orders is a critical service unaffected by the pandemic, and rejected the respondents' explanation. Lacking an itemized statement and any valid reason for its absence, the court adopted the claimant's tabulation. It declined to convict the officers itself, holding that the offence under section 16(4) requires report and investigation by the Kenya Police Service and the County Labour Officer. The Registrar was ordered to serve the County Labour Officer, Machakos, to address the offence and report back within thirty days, with costs to the claimant.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.A determination on the particulars of the itemized pay statement for Kshs 11,773,570
  2. 2.Whether the Respondents' officers in charge of payroll management are guilty of an offence under Section 16(4) of the Employment Act 2007

Key legal issues

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01

Determination of the particulars of the itemized pay statement for Kshs 11,773,570

Holding

The court deemed/adopted the claimant's tabulation of Kshs 11,773,570 since the respondents failed to issue the itemized pay statement and offered no valid reason for the failure

Reasoning

Section 20 of the Employment Act places a mandatory responsibility on employers to give written itemized pay statements. The respondents did not deny non-compliance, pleading COVID-19 staffing constraints and delayed National Government disbursements. The court rejected this, holding that compliance with court orders is a critical service, and that failing to issue itemized pay statements is abhorred by fair labour practice. Consequently the claimant's tabulation binds the court.

p. 3
02

Whether the respondents' payroll officers are guilty of an offence under section 16(4) of the Employment Act

Holding

Failure to give a statement under section 20 is an offence, but conviction is a matter for investigation and prosecution by the appropriate agencies; the court directed the County Labour Officer, Machakos to address the offence and report back within 30 days

Reasoning

The court found that section 16(4) criminalizes failure to issue statements required by sections 10, 12, 13 or 20. It held that this brings an element of criminal conduct and labour offences requiring report and investigation by appropriate agencies - the Kenya Police Service and the County Labour Officer - rather than conviction by the civil court in these proceedings.

p. 3

Legal principles established

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  • An employer has a mandatory statutory duty to issue an itemized pay statement under section 20 of the Employment Act, 2007, and no excuse relieves the employer of that duty.
  • Where an employer fails without valid reason to provide an itemized pay statement, the court is bound by the employee's own tabulation of the amounts due.
  • Services that enable an employer to comply with court orders are critical services, so the COVID-19 pandemic does not excuse non-preparation of an itemized pay statement.

Court orders

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  1. 1.The court is bound by the claimant's tabulation of the award at Kshs 11,773,570 in the absence of an itemized pay statement from the respondents
  2. 2.The Registrar shall extract the orders herein and serve the County Labour Officer, Machakos, to address the offences pursuant to section 16(4) of the Employment Act, 2007 and report back to the court within thirty (30) days
  3. 3.Costs awarded to the claimant

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Sections 16, 20 and 87 of the Employment and Labour Relations Court Act and sections 16 and 20 of the Employment Act, 2007

Relief refused

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Conviction of the Respondents' officers in charge of payroll management under section 16(4) of the Employment Act

That element is criminal conduct requiring report, investigation by appropriate agencies (Kenya Police Service and the County Labour Officer); the court remitted the matter to the County Labour Officer rather than convicting itself

p. 3

Punitive and exemplary damages with interest on the outstanding salary arrears

Not granted in the final orders; the court instead adopted the claimant's tabulation and referred the offence to the County Labour Officer

Costs

Costs herein awarded to the claimant.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It therefore follows that section 20 gives a mandatory responsibility to the employers.
p. 3statutory duty to issue itemized pay statements
The practice of an employer failing to issue an employee with an itemized pay statement no matter what excuse is put forward is a matter that is abhorred by fair labour practice.
p. 3fair labour practice and non-issue of pay statements
Services that assist the respondents in complying with court orders are critical services.
p. 3COVID-19 no excuse for non-compliance
There being no itemized statement from the respondent and there being no valid reason as to why this is yet to be availed, the court is bound by the claimant's tabulation.
p. 3adoption of claimant's tabulation
Accordingly, the Registrar shall extract the Orders herein and serve the County Labour Officer, Machakos to address pursuant to section 16(4) of the Employment Act, 2007 and report to the court within thirty (30) days.
p. 3final orders - referral to County Labour Officer
Costs herein awarded to the claimant.
p. 4costs

Issues in the judgment

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minor

The application's prayer (d) and the court's framing both refer to 'Section 16 (4) of the Employment Act 2007', but the judgment earlier quotes section 16 without a subsection (4) in the extracted text, and prayer cites 'sections 16, 20 and 87 of the Employment and Labour Relations Court Act' while the offence provision is in the Employment Act; the two statutes are used interchangeably in places

minor

The names of the 1st and 2nd respondents are not expressly stated in the extract; only their advocates (M/S J Muoki & Company Advocates) and the respondents' Chief Officer (Dr Joel Mwoya) are named

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, "James Wafula Wenyaa v County Government of Machakos & another [2021] KEELRC 1487 (KLR)", Case Analysis (2021). Not stated on the face of the extract (ELRC cause in which orders of 13th March 2019 were issued). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1487/eng@2021-02-09

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