Peter Sandoko Musalai v Cornerstone Limited

d) Any other relief this Honourable Court may find fit and just Claimant’s Case 2 The Claimant avers that he was employed by the Respondent as a motor vehicle driver from the year 2005 up to 1st August 2021, when he was forced to tender his resignation letter to the Respondent. 3 He avers that he was engaged pursuant to an oral contract entered into on or about the year 2005, to serve as a long-distance trailer commercial driver, and that his job description entailed transporting containers from Mombasa to Nairobi, Kisumu, Kisii and Kericho counties. He worked seven days a week at a consolidated salary of Kshs. 28,000 per month as at August 2021. 4 It is the Claimant’s case that he was paid the said monthly consolidated salary from 2018 to 2021, notwithstanding that the applicable wages guidelines provides for a minimum of Kshs. 30,627 inclusive of house allowance for a heavy commercial vehicle driver, thereby occasioning an underpayment. 5 The Claimant avers Respondent up to that 1st he diligently August 2021, Page 2 of 20 served when the he was

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constrained to resign from employment after the Respondent failed to address the grievances he had raised. The grievances included his request for salary increment, review of daily allowances, and the grant of leave and off days. 6 He contends that throughout the course of his employment, he was not accorded off days and/or annual leave days as contemplated under the Employment Act, and that he is entitled to be issued with a certificate of service. 7 It is his case that he served the Respondent with dedication, loyalty and diligence, and maintained a clean disciplinary record throughout. 8 He avers that upon tendering his resignation, he became entitled to his terminal dues, which the Respondent has wrongfully ignored, neglected and/or failed to pay, despite demand and a notice of intention to sue having been issued to the Respondent. 9 The Claimant tabulates his terminal dues as follows: outstanding annual leave of 21 days over 16 years at Ksh 448,000; off-duties and public holidays computed at 58 days x Ksh 28,000 x 16 years, amounting to Ksh 448,000; and underpayment of Ksh 2,627 x 12 x 3, amounting to Page 3 of 20

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Ksh 94,572, bringing his claim to a grand total of Ksh 990,572. Respondent’s Case 10 In opposition to the claim, the Respondent filed a Memorandum of Defence dated 31st July 2024. 11 The Respondent that the Claimant was employed in July 2010, and not in 2005 as alleged, and that he voluntarily separated from employment on 31st August 2021, rather than being forced to resign. 12 The Respondent avers that the Claimant was entitled to two days off every month, which entitlement was augmented by a leave travel allowance paid to him throughout the course of his employment. 13 It avers that the Claimant paid Kshs. 70,000 at the time of separation, being part settlement towards the underpayment claimed. 14 It is the Respondent's case that the Claimant's employment was not without blemish, but was instead marked by repeated incidents of misconduct. Page 4 of 20

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15 The Respondent further avers that the true reason for the Claimant's separation from employment was expressly set out in his retirement letter dated 1st August 2021. 16 The Respondent avers that it has substantially complied with its post-separation obligations to the Claimant, and maintains that the Claimant's certificate of service has been ready for issuance, but that the Claimant has made no effort to clear with the Respondent and collect the same. 17 It is the Respondent's case that it has remained ready and willing to comply with the residue of the Claimant's dues, but has been unable to do so on account of the Claimant's disappearance following termination and his consequent refusal to conclude the post-separation clearance process. 18 On this basis, the Respondent maintains that judgment ought to be entered only for the admitted sum of Kshs. 24,572, with the residue of the claim dismissed with costs. Evidence in Court 19 The Claimant witness, (CW1) adopted his witness statement filed on 10th June 2024 as his evidence in chief and produced his documents dated 6 th June 2026 as his exhibit 1-6 respectively. Page 5 of 20

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20 During cross-examination, CW1 testified that the allowance was not part of his salary. 21 He testified that he had no off days and he also worked during holidays during his 16 years of service to the Respondent. 22 CW1 testified that he currently 71 years old, and he officially retired vide his letter dated 1 st August 2021 which is before court. 23 He testified that he never complained about his money being paid. Additionally, the letter dated 21 st November 2020 had a proposal as drivers but it was not responded to. 24 CW1 testified that it was during Corona period and he was on duty despite this. 25 The Respondent’s witness, John Mwangi (RW1) adopted his witness statement dated 24th November 2025 as his evidence in chief and produced the Respondent’s filed documents dated even dated as his exhibits dated 1-4. 26 Upon cross-examination, RW1 testified that he is a Transport Officer which is not the same as a Transport Page 6 of 20

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Manager. His duties were logistics as the Transport Manager addresses the drivers’ grievances, thus, none of the grievances came to him. 27 RW1 testified that the Claimant was a driver from Nairobi to Mombasa, Kisumu or Eldoret. 28 He testified that the letter that contained the drivers’ grievances dated 3rd November 2020 was addressed to him. 29 RW1 testified that the drivers allowance of Kshs 3,000 per trip was not agreed on. 30 He testified that the Claimant was paid Kshs. 24,572 compensation and he was given leave days. He was never issued any warning letter. Claimant’s Submissions 31 The Claimant submitted that throughout his employment, the Respondent persistently failed to address his grievances relating to salary increments, allowances and leave entitlement, thereby rendering the employment relationship untenable and compelling him to resign. Page 7 of 20

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32 It was submitted that the resignation amounted to constructive dismissal and that the Respondent subsequently failed to settle his terminal dues, save for a payment of Kshs. 70,000 which was described as a token of appreciation and not settlement of his lawful entitlements. 33 The Claimant submitted that the evidence adduced at trial established that he was never granted annual leave throughout his employment and was required to work during public holidays without compensation. He argued that although the Respondent disputed the claim, it failed to produce leave records as required under section 74(1) (f) of the Employment Act, which obligates an employer to maintain records of an employee’s annual leave entitlement, leave taken and leave due. 34 It was further submitted that the Respondent’s witness acknowledged that his responsibilities were confined to logistics and did not extend to the custody or production of leave records, with the result that the Claimant’s evidence on accrued leave remained unrebutted. Therefore, he is entitled to payment in lieu of the accrued leave pursuant to section 28(1) of the Employment Act, which guarantees an employee not less than twenty-one Page 8 of 20

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working days of annual leave after every twelve consecutive months of service. 35 On the issue of constructive dismissal, the Claimant argued that the Respondent's persistent failure to resolve his employment grievances created an intolerable working environment, leaving him with no reasonable alternative but to resign. He relied on his letter of grievances dated 3 rd November 2020 as evidence that he had raised concerns with the Respondent before resigning, but that no meaningful action was taken. 36 In support of this argument, the Claimant relied on Ocholla v Ellams Products Limited [2025] KEELRC 2338 (KLR) where the Court observed that: “The evidence of the claimant of constructive dismissal was not diluted by failure of the claimant to make demands earlier… the maltreatment of the claimant at the shop floor by the management made the employment no longer tenable and he was left with no choice but to resign.” 37 The Claimant M’thambura further v relied Chandaria on Simon Kinyua Industries Limited [2018] KEELRC 1932 (KLR), where the Court held that: “The Court considers that the respondent’s failure to Page 9 of 20

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amicably resolve the claimant’s grievance... amounted to unfair constructive dismissal or termination.” 38 It was submitted that the Respondent’s allegation that the Claimant siphoned fuel from its vehicles was unsupported by any investigation reports, fuel audit reports, disciplinary records or other documentary evidence. The Claimant argued that had the allegations been genuine, the Respondent would have subjected him to a disciplinary process in accordance with section 41 of the Employment Act. 39 The absence of such a process, it was submitted, demonstrated that the allegations were merely an afterthought intended to defeat the claim. 40 Regarding underpayment, the Claimant submitted that he served as a heavy commercial vehicle driver but was paid a consolidated monthly salary of Kshs. 28,000, which was below the statutory minimum wage prescribed under the Regulation of Wages (General) (Amendment) Order, 2017. 41 He argued that the applicable Wage Order provided for a minimum basic wage of Kshs. 26,632.55 together with a mandatory house allowance of 15%, bringing the statutory minimum consolidated remuneration to Kshs. 30,627.45. Page 10 of 20

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Consequently, the Respondent unlawfully paid him below the statutory minimum throughout the material period. 42 The Claimant further submitted that the Respondent's conduct contravened section 26(1) of the Employment Act, which prohibits parties from contracting out of statutory minimum terms and conditions of employment. He relied on Greatlaes Trans (K) Limited v Robert Mackoy Limited [2025] KEELRC 2663 (KLR) where the Court held that: “Whereas the parties to an employment contract are allowed to negotiate terms and conditions thereof, they cannot contract to pay a wage below the minimum legal threshold under the prescribed Wage Orders.” 43 The Claimant argued that by paying him a salary below the prescribed statutory minimum, the Respondent denied him both his lawful basic wage and mandatory house allowance, thereby entitling him to recover the underpayments claimed. 44 He further submitted that the payment of Kshs. 70,000 reflected in his Equity Bank statement after his resignation was inadequate to satisfy his statutory entitlements. Page 11 of 20

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45 It is further the Claimant’s submission that the Respondent, in its Memorandum of Defence, admitted that the Claimant was underpaid and it conceded liability to the extent of Kshs. 24,572, which constituted an admission in respect of the claim for underpayment. Respondent’s Submissions 46 The Respondent submitted on four issues: whether the Claimant proved that he was employed in 2005; whether the Claimant was constructively dismissed by the Respondent; whether the Claimant is entitled to annual leave; and whether the Claimant proved that he is entitled to payment for off days and public holidays. 47 On the first issue, the Respondent submitted that the Claimant was employed in January 2011 and not in 2005 as alleged. It argued that although no written contract of employment existed, the Claimant’s NSSF statement demonstrated consistent statutory contributions from January 2011 until August 2021, thereby establishing the period of employment on a balance of probabilities. Conversely, the Claimant documentary or oral had evidence between 2005 and 2010. Page 12 of 20 not produced proving any employment

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48 In support thereof, it cited Isuzu East Africa Limited (Formerly General Motors East Africa Limited) v Joseph Likoe Nyangweso [2020] KEELRC 1725 (KLR) for the proposition that the burden of proving an employment relationship rests with the party asserting it and is not shifted merely because an employer fails to produce employment records. The Respondent particularly relied on the Court’s holding that:“I further find that the trial court erred in law and fact by shifting the burden of proof when she found that the appellant had failed to prove by employment record that the respondent was not her employee on the fateful day. In my view the default to produce the employment record did not make the respondent an employee of the appellant.” 49 It was therefore submitted that the Court should adopt the employment period reflected in the NSSF records. Alternatively, should the Court find that the Claimant was employed from 2005, it was urged to take judicial notice that the Employment Act, 2007 came into force on 2 nd June 2008, thus, any statutory rights arising under the Act could not be applied retrospectively to the period the Respondent preceding its commencement. 50 Regarding constructive dismissal, submitted that the claim is legally untenable because constructive dismissal was neither been pleaded in the Page 13 of 20

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Statement of Claim nor formed part of the Claimant’s pleaded cause of action. 51 It is the Respondent’s submission that parties are bound by their pleadings and cannot advance a different case through evidence or submissions. In support, reliance was placed on Makau v Cook N Lite Ltd [2023] KEELRC 1113 (KLR) and Munyua v Sikalie & 2 others [2025] KEELRC 413 (KLR), where the Court declined to determine claims for unfair termination that had not been specifically pleaded. 52 The Respondent further submitted that the evidence on record demonstrated that the Claimant voluntarily resigned vide his letter dated 1 st August 2021. It argued that the alleged failure to increase salaries following the COVID-19 pandemic had been communicated to employees in November 2020 and that the approximately nine-month interval before the Claimant resigned was inconsistent with a claim of constructive dismissal. 53 The Respondent contended that the resignation could not reasonably be attributed to any repudiatory conduct on its part. Reliance was placed on Godfrey Allan Tolo v Tobias O. Otieno [2022] KEELRC 359 (KLR) for & the another proposition that constructive dismissal can only be inferred where an Page 14 of 20

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employee resigns within a reasonable time after the employer's hostile conduct. 54 It further relied on Kenneth Kimani Mburu & another v Kibe Muigai Holdings Limited [2014] KEELRC 723 (KLR) and the Court of Appeal decision in Coca Cola East & Central Africa Limited v Maria Kagai Ligaga [2015] KECA 394 (KLR), submitting that constructive dismissal requires proof of a fundamental breach of contract by the employer, a causal link between the breach and the resignation, and that the employee resigned promptly in response to the breach. 55 The Respondent argued that none of these elements had been established and that the Claimant's assertion that he had been compelled to resign was an afterthought unsupported by the evidence. It also relied on Daniel Otieno Migore v South Nyanza Sugar Co. Ltd [2018] eKLR for the principle that evidence inconsistent with pleadings ought to be rejected. 56 On the claim for annual leave, the Respondent submitted that any entitlement should be computed on the basis of the proved period of employment, namely eleven years. Referring to sections 28 and 10(6) of the Employment Act, it calculated the Claimant's accrued leave at Kshs. 272,108.76 and urged the Court to limit any award. Page 15 of 20

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57 With respect to the claim for off days and public holidays, the Respondent submitted that the Claimant failed to discharge the burden of proof. It argued that the Claimant admitted receiving a daily travel allowance of Kshs. 3,000, which was separate from his salary, and that he had not identified the specific off days or public holidays allegedly worked without compensation. 58 Although the Respondent acknowledged that it had not produced documentation showing computation of off days, it argued that, once the Claimant admitted receiving travel allowance, the evidential burden shifted to him to demonstrate the periods for which payment remained outstanding. 59 In support, reliance was placed on Omondi v Kenya Kazi Services Limited [2023] KEELRC 196 (KLR) where the Court held that an employee who admits receiving overtime payments bears the burden of proving the specific periods or instances in which payment was omitted or incorrectly calculated. 60 On underpayment, the Respondent reiterated that it admitted liability only to the extent of Kshs. 24,572 after taking into account the Kshs. 70,000 paid to the Claimant upon separation. It disputed the Claimant's assertion that Page 16 of 20

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the payment was merely a token of appreciation and submitted that it constituted partial settlement of the underpayment claim. 61 The Respondent further argued that the Claimant was a contributor to the National Social Security Fund and therefore, by virtue of section 35(6)(d) of the Employment Act, was not entitled to service pay. 62 Reliance was placed on Ndiyone v Carslake Nominees Limites t/a Diani Sea Resort & another [2022] KEELRC 12968 (KLR), where the Court held that employees who are members of the NSSF or an employersponsored pension scheme are excluded from service pay under section 35(6) of the Act. The Respondent argued that any sums awarded be subjected to statutory deductions pursuant to section 49(2) of the Employment Act. 63 Regarding the certificate of service, the Respondent submitted that the document had been prepared and remained available for collection, but the Claimant had not cleared with the Respondent to enable its release. It relied on Munyua v Sikalie (Supra) to argue that clearance is a prerequisite to payment of terminal dues and collection of employment documents where an employee remains in possession of the employer’s property. Page 17 of 20

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64 In conclusion, the Respondent urged the Court to enter judgment only for the admitted sums of Kshs. 24,572 for underpayment and Kshs. 272,108.76 for accrued leave, and dismiss the remainder of the claim for want of proof and award costs in its favour. 65 I have examined all the evidence and submissions of the parties herein. The claim by the claimant is that he was forced to retire from the respondents employment due to the way the respondents treated him. He also avers that he was not paid his retirement benefits. He also seeks to be paid for overtime and leave not taken during the 16 years of employment. 66 As concerns, the claimant’s retirement, there is no evidence that the retirement was due to day act of the respondent. The claimant wrote a letter dated 1/8/21 giving notice of his intended retirement. He never cited any act or omission against him by the respondent that would have been the cause of his retirement. The averment that he was constructively retired is therefore found without proof and is disregarded. 67 As concerns his other claims, as terminal benefits, the claimant sought to be paid leave not taken during the 16 years. The respondents indicate that the claimant always Page 18 of 20

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took his leave and thus was always paid to him through out the course of his employment. No evidence of such payment was exhibited by the respondents nor was any pay slip of the claimant available before court. 68 The averment that leave pay was made is therefore without proof. I find that the claimant is therefore entitled to payment of his leave not paid for 3 years prior to retirement which is 3x30,627 =91,881/-As concerns underpayment the claimant indicated he was paid kshs 28,000/- per month whereas the applicable salary was kshs 30,627/-. This is evidenced by the prevailing wage guidelines. The claimant is therefore entitled to the underpayment= 2627x12x3 for last 3 years = 94,572/-. 69 I will therefore award claimant total kshs 186,453/- less statutory deductions. The respondent will pay cots of this suit plus interest at court rates with effect from the date of this judgment. Dated, Signed and Delivered virtually at Machakos this 25th Day of September 2026. HELLEN WASILWA JUDGE Page 19 of 20

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