Del Monte Kenya Limited v Kyengo (Appeal E007 of 2024) [2024] KEELRC 2603 (KLR)
The bottom line
#Kenya's Employment Court cut an employee's award: service pay was scrapped and leave pay limited to three years, but unpaid salary stood because the employer had no proof of payment.
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 trial learned Magistrate erred in awarding the Respondent one month's salary arrears, service pay and unpaid leave.
- 2.Whether the trial Learned Magistrate erred in awarding costs and interests to the Respondent.
Key legal issues
#Award of one month's salary arrears
Trial court's award upheld; the Appellant produced no evidence of payment for February 2021.
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.
Award of service pay
Trial court's award set aside; the Respondent was not entitled to service pay.
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.
Award of unpaid leave for 10 years
Award reduced to leave for three years preceding filing of the suit, being Kshs. 132,579/-.
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.
Award of costs and interests
Trial court's award of costs to the successful Respondent not faulted.
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.
Legal principles established
#- Where an employment claim is governed by section 90 of the Employment Act, claims for untaken leave are limited to three years preceding the filing of the suit.
- The employer, as custodian of employment records, bears the evidential burden of proving payment of salary or that leave was taken or paid for.
Court orders
#- 1.The award for service pay is set aside.
- 2.The award for untaken leave for 10 years is reduced from 10 years to three years being Kshs. 132,579/-
- 3.Costs and interests at the lower court maintained.
- 4.Each party shall bear their own costs of the Appeal.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Senior Principal Magistrate's Court (Honourable P. Mutua (MR) (SPM))
- Jurisdiction invoked
- First appellate jurisdiction over the trial magistrate's judgment in an employment claim
Relief refused
#Service pay award of Kshs 220,965.00 to the Respondent
The Respondent was a member of NSSF and of a CBA service pay/gratuity scheme; he was not entitled to service pay under section 35(6)(d) of the Employment Act and the CBA excluded those dismissed for gross misconduct.
Appellant's prayer to set aside the entire judgment and dismiss the lower court claim
The appeal only partially succeeded; the salary arrears and reduced leave awards were upheld.
Costs
The appeal being partially successful each party shall bear their own costs of this Appeal; costs and interests at the lower court stand.
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.
a. The award for service pay is hereby set aside. b. The award for leave untaken for 10 years is hereby reduced from 10 years to three years being Kshs. 132,579/- c. Costs and interests at lower court
The appeal being partially successful each party shall bear their own costs of this Appeal.
This being an employment claim it is governed by Employment Act which under section 90 limits such claims to three years or one year in case of continuing injury.
burden was on the Appellate who was the custodian of employment records to illustrate by evidence of a pay slip or payment receipts that the Respondent was paid
Issues in the judgment
#Internal contradiction on the date of the trial court judgment
Internal contradiction on the date of the Respondent's dismissal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Del Monte Kenya Limited v Kyengo (Appeal E007 of 2024) [2024] KEELRC 2603 (KLR)", Case Analysis (2024). Memorandum of Appeal dated 9th January, 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2603/eng@2024-10-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.