Kinuthia v Barefoot Power Africa Limited (Cause 1187 of 2018) [2024] KEELRC 180 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Claimant is owed arrears of salary for March, April, May and June 2018
- 2.Whether the Respondent's justifications (misappropriation of EU grant funds, failure to clear/account, alleged irregular hiring, alleged failure to serve the notice period) justify withholding the salary arrears
- 3.Whether the Claimant's claim for out-of-pocket expenses of Kshs. 49,716 is proved
Key legal issues
#Entitlement to salary arrears during the contractual notice period
The Claimant was owed arrears of salary for March to June 2018; the rate and months were not disputed and the Respondent's justifications for withholding were without merit
It was common ground that the Claimant resigned with 3 months' notice effective end of June 2018, and that the Respondent was in financial constraints but unable to pay staff. Communications during the notice period showed the Claimant was still at work; the Respondent never brought disciplinary proceedings for desertion. Allegations of misappropriation were unsupported by any investigation report, and no counterclaim was filed. The Respondent acted in violation of the statutory salary protections in sections 17, 18 and 19 of the Employment Act.
Whether failure to clear and account for an EU grant justified withholding salary
No - the Claimant complied with court-endorsed clearance steps and produced a report; the Respondent never specified what was missing
Court orders of November 2018 through June 2019 endorsed a clearance process, which the Claimant completed by preparing a report on the EU grant on 21st June 2019, despite not being the Finance Officer. Karanja acknowledged the report but vaguely called it sketchy without identifying missing information. He was not a signatory to the funds, and no counterclaim was presented seeking recovery from him.
Proof of out-of-pocket expenses claim
The claim for Kshs. 49,716 in out-of-pocket expenses failed for lack of supporting documents and a workplace reimbursement policy
The burden lay on the Claimant to establish the terms regulating expenditure and reimbursement. His evidence did not adequately explain those terms, no supporting documents were produced, and no workplace policy mandating reimbursement was exhibited. The prayer was therefore declined, though the salary arrears claim succeeded.
Legal principles established
#- An employer must pay the entire amount of salary earned by or payable to an employee in respect of work done under a contract of service; wilful refusal to pay salary is a criminal offence
- Unproven allegations of misconduct, without investigation, disciplinary action or counterclaim, do not justify withholding salary
Court orders
#- 1.The Respondent shall pay to the Claimant arrears of salary for the months of March, April, May and June 2018, at Kshs. 360,053 each month, amounting to Kshs. 1,440,212
- 2.Interest on the principal amount at court rate per annum from 30th June 2018 until payment in full
- 3.Costs to the Claimant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act; Statement of Claim filed under the Court's procedural rules)
Relief refused
#Claim for Uganda WISE out-of-pocket expenses of Kshs. 49,716
Not supported by adequate evidence; no documents or workplace policy on reimbursement exhibited
Costs
Costs to the Claimant
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The Respondent shall pay to the Claimant arrears of salary for the months of March, April, May and June 2018, at Kshs. 360,053 each month, amounting to Kshs. 1,440,212.
Interest on the principal amount above, is granted at court rate, per annum, from the 30th June 2018, till payment is made in full.
Section 17 of the Employment Act, requires that an Employer shall pay the entire amount of the salary earned by, or payable to an Employee, in respect of work done by the Employee, in pursuance of a contract of service.
Under section 17[10] of the Employment Act, wilful refusal by an Employer to pay an Employee his salary is a criminal ofience, attracting a fine not exceeding Kshs. 100,000, imprisonment of a term not exceeding 2 years, or both.
This claim is a stark reminder, of the Kenyan Litigant's uncanny ability, to create a dispute where there is none; prolong the dispute so created unnecessarily; and use the court process, in resisting clear statutory and contractual obligations.
Issues in the judgment
#Judgment alternates between claiming the Claimant was employed as 'Group Segment Manager-Grants' and his evidence that he 'was Head of Sales'
Claim header pleads monthly salary claimed at Kshs. 360,053 per month totalling Kshs. 1,489,930 for four months plus expenses, but the final award computes four months at Kshs. 360,053 as Kshs. 1,440,212 (arithmetic of the pleaded total is inconsistent)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kinuthia v Barefoot Power Africa Limited (Cause 1187 of 2018) [2024] KEELRC 180 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/180/eng@2024-02-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.