Mayukuvu v Kenol Kobil Limited & another (Employment and Labour Relations Cause 13 of 2018) [2025] KEELRC 636 (KLR)
The bottom line
#A Kenyan court refused to boost an ex-employee's terminal dues payout because he never proved the exact amount, and NSSF membership barred extra benefits.
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's terminal dues awarded in the judgment of 20th September 2024 should be assessed at Kshs. 622,744.50 as prayed
- 2.Whether the application is tenable given the Respondent's contention that the Court is functus officio
Key legal issues
#Whether the terminal dues awarded in the judgment of 20th September 2024 could be assessed at Kshs. 622,744.50
The application was dismissed. The Court held that the Claimant's exact terminal dues figure was never stated in the pleadings, and as an NSSF member he was not entitled to service pay or gratuity under sections 35(6)(d) and 35(6)(b) of the Employment Act, 2007.
The Court noted it had awarded terminal dues based on the contract of employment, but the exact figure was never stated by the Claimant. From the pleadings, the Claimant was a member of NSSF. Section 35(6)(d) of the Employment Act, 2007 bars any further benefits unless clearly stated, and section 35(6)(b) excludes gratuity unless a gratuity or service pay scheme exists under a collective agreement. Neither applied, so the assessment sought was unsupported.
Legal principles established
#- An employee who is a member of NSSF is not entitled to service pay or other benefits beyond those clearly stated, by virtue of section 35(6)(d) of the Employment Act, 2007
- Gratuity as part of terminal dues is not payable where the employee is not a member of a gratuity or service pay scheme established under a collective agreement (section 35(6)(b) of the Employment Act, 2007)
Court orders
#- 1.The application to review/assess terminal dues is dismissed
- 2.No order of costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Inherent jurisdiction of the Employment and Labour Relations Court to assess and review its own awards (application for assessment of terminal dues awarded in the judgment of 20th September 2024)
Relief refused
#Assessment of terminal dues at Kshs. 622,744.50 (Kshs. 59,309 divided by 30, multiplied by 15 days, multiplied by 21 years)
The exact figure was never pleaded or proved; the Claimant was a member of NSSF and by section 35(6)(d) of the Employment Act, 2007 is not entitled to other benefits, and gratuity is not payable under section 35(6)(b) absent a gratuity or service pay scheme established under a collective agreement
Costs of the application
The Court declined to award costs to either party
Costs
No order of costs - each party to bear their own costs of the application
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.
By virtue of section 35(6)(d) of the employment act 2007 he is not entitled to any other benefits unless clearly stated. His claim for gratuity as part of his terminal dues is also not payable for the same reasons.
In the circumstances of this case, the application to review is therefore not merited and is therefore dismissed accordingly. There shall be no order of costs.
Issues in the judgment
#The judgment typographically renders 'functus officio' as 'functus oficio' in the Respondent's replying affidavit account
Section 35(6)(b) of the Employment Act is quoted in truncated form, with the statute book reference appearing mid-quotation
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mayukuvu v Kenol Kobil Limited & another (Employment and Labour Relations Cause 13 of 2018) [2025] KEELRC 636 (KLR)", Case Analysis (2025). Not stated in the judgment (application dated 26th November 2024 arising from a judgment delivered on 20th September 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/636/eng@2025-03-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.