Del Monte Kenya Limited v Kyengo (Appeal E007 of 2024) [2024] KEELRC 2603 (KLR)

The Respondent worked in February 2021 but the last pay slip was for January 2021. The employer, as custodian of employment records, should have produced a pay slip or payment receipts to prove payment. Having failed to do so, the award of one month's salary arrears could not be disturbed and the ground of appeal failed.

The Respondent was an NSSF member, which is an exception under section 35(6)(d) of the Employment Act. His employment letter subjected him to the CBA, whose section 8(h) excluded service pay for employees dismissed for gross misconduct, and the CBA service pay scheme was an exception under section 36(5)(b). He also ought to have produced NSSF statements to show non-remittance. The trial court erred in making the award.

Leave is a statutory entitlement under section 28 of the Employment Act, but claims are limited to three years by section 90. The suit filed in February 2022 was within the limitation period, entitling the Respondent to only three years' untaken leave, not ten. The employer failed to produce leave records to rebut the claim.

Under section 27 of the Civil Procedure Act costs follow the event unless the court otherwise orders, and section 12(4) of the Employment and Labour Relations Court Act confers discretion on costs. The suit was instituted because the Appellant failed to pay the Respondent his dues, so the trial court was justified in awarding costs to the successful party.