1.Josephine Munee Njeru (the respondent), was employed by Alsaidco Alarm Limited (the appellant) as a day watchman from 31st August, 1997 to 15th August, 2004 when she resigned from her employment.
2.The respondent’s claim was that upon her resignation, she was not paid her terminal dues. This prompted her to file a plaint dated 4th September, 2007 before the Chief Magistrate’s Court at Nairobi seeking her terminal benefits of Kshs.552,564.10/- under the 1998 Regulation of Wages (Protective Security Services) Order, (the Order). The breakdown of the amounts claimed was as follows:S. No. Item Amount 18 days worked in July 2004, 2,700.00Payment in lieu of annual leave in 2004, 3,600.00Refund of uniform deposit, 1,200.00House allowance for 6years 11 months, 56,025.00Traveling allowance for 344 days in 6 years, 123,840.00Traveling allowance for 309 days in 2004, 18,540.00Payment for holidays worked 66 days, 27,495.60Overtime worked 4hours per day for 6years, 315,792.00Service pay for 6 years, 21,871.50Total. 571,064.10Less monies received, 18,500.00Total claimed, 552,564.10
3.The appellant denied that the respondent was in their employment at any given time during the mentioned period and in the alternative that the respondent was fully compensated upon her resignation.
4.During her testimony, the respondent produced her work identity card and National Social Security Fund (NSSF) statement as evidence of her employment with the appellant because, she maintained, no pay slip or employment letter was issued to her by the appellant. She testified that some of the places she had worked in Nairobi included IPS building, Jubilee Insurance Building and MP Shah Hospital reception.
5.It was her further testimony that she issued her resignation notice to the appellant on 18th July, 2004 due to fatigue. She produced her letter of resignation in evidence in which she claimed her terminal dues. She claimed to have gone on an unpaid leave, was not paid service pay and was also not refunded money for uniform upon returning the same. She claimed to have worked for 12 hours instead of 8 hours per day and claimed overtime in respect of the 4 extra hours that she worked per day for the 6 years worked.
6.The respondent further claimed salary for 18 days that she worked in July 2004, payment in lieu of annual leave not taken, house allowance for 6 years and 11 months at 15% of the basic salary, 66 days’ payment for public holidays worked and travel allowance.
7.The respondent conceded that she was paid Kshs. 18,500/- in the presence of the Kenya Commercial Food and Allied Workers Union officials on 18th August, 2004 but denied that it was in full and final settlement of her claim.
8.The respondent’s witness, Mr. Simon Matiko Mwita (CW2) stated that he worked with her from 2nd February, 2000 when he was employed by the appellant. He confirmed that he was not issued with an employment letter but rather an employment card. He worked for the appellant for 12 years until 2012.
9.In the appellant’s statement of defence, it denied that it had employed the respondent in the alleged capacity and time set out in the plaint.The appellant further denied that it terminated the employment of the respondent and maintained that she was not entitled to the terminal benefits and general damages claimed. In the alternative, the appellant pleaded that if there was any sum due and payable to the respondent, the same was paid in full and the respondent has no further claim against the appellant.
10.The Chief Magistrate’s Court dismissed the respondent’s suit with costs and interest.
11.Aggrieved by that finding, the respondent filed an appeal before the High Court. The file was referred to the Employment and Labour Relations Court (ELRC) with an order that the matter starts afresh as the proceedings in the lower court could not be traced.
12.The ELRC (Nduma Nderi, J.) in his determination found the testimony by the respondent and her witness to be consistent and credible and that the terminal benefits claimed were consistent with the Order. The court noted that the appellant did not call any witnesses to rebut the evidence adduced and made bare denials of the particulars of claim and had even denied in the plaint that it had ever employed the respondent, a position that counsel for the appellant had retracted in court.
13.The learned Judge entered judgment in favour of the respondent against the appellant for Kshs.410,184.00 which was the total amount claimed amounting to Kshs.552, 564.10 excluding the travel allowance of Kshs.142,380.00 which the learned Judge found was not provided for under the Order.
14.Dissatisfied with the said judgment, the appellant filed the instant appeal in which it raised grounds of appeal to wit that the learned Judge erred in law and in fact in awarding to the respondent: judgment in her favour yet she failed to prove her case on a balance of probability; special damages not specifically proven; gratuity whereas the respondent resigned on her own volition; failing to consider the judgment of the lower court in which the court held that the respondent had failed to establish a reasonable degree of probability; judgment on evidence not connected to the respondent; disregarding the appellant’s submissions; failing to consider the evidence by the appellant; and making a finding not supported by law or the evidence adduced.
Submissions by Counsel
15.The appeal was disposed of by way of written submissions. Learned counsel for the appellant, Ms. Wangeci holding brief for Mr. Charles Madowo submitted that the respondent failed to produce evidence in support of her claim as to the terms of employment, salary paid or payment of allowances. Counsel maintained that it is trite law that special damages must be specifically pleaded and strictly proved. (See: Christine Mwigina Akonya v Samuel Kairu Chege  eKLR).Counsel asserted that in the instant case no evidence was adduced as proof of special damages and that the speculated items in the statement of claim were hypothetical sums made up by the respondent.
16.As regards gratuity, counsel submitted that Regulation 17 of the Order entitles any employee who has worked for an employer continuously for 5 years to gratuity at the rate of 15 days per year of service. Under Regulation 17(2) thereof, the benefit is not available to an employee who terminates his or her employment for any reason other than ill health or retirement. To buttress this argument, the appellant relied on the case of Fidelis Mwanyumba v Total Security Surveillance  eKLR
17.Counsel further submitted that the respondent failed to demonstrate that she was entitled to a refund of the uniform levy under the policy. The appellant faulted the learned Judge for failing to consider its submissions as well as the judgment by the lower court and proceeded to consider evidence not connected to the respondent’s case. Further, that the evidence of the witnesses was not reliable as they were not aware of the terms of employment agreed upon between the respondent and the appellant.
18.Learned counsel for the respondent, Mr. Gitonga Wambugu submitted that the appeal is incompetent for failing to meet the mandatory requirements of Rule 87 of the Court of Appeal Rules, 2010 which cannot be cured by the filed supplementary record. To buttress this submission, the respondent relied on the case of Bwana Mohamed Bwana v Silvano Buko Bonaya & 2 Others  eKLR and urged that the appeal be dismissed and the impugned judgment be upheld.
19.We have considered the record, the submissions, the authorities cited and the law. We shall first determine whether the appeal should be struck out on grounds of omission of the requisite bundle of documents; and if the answer is in the negative, whether the respondent proved her case to the required standard.
20.From the record, upon dismissal of her suit at the Chief Magistrate’s Court at Nairobi, respondent appealed to the High Court where Onyancha, J. found that some pages of the trial court’s proceedings were missing. In the interests of justice and fairness, the learned Judge set aside the lower court judgment and ordered a retrial of the suit before the Industrial Court (now the Employment and Labour Relations Court).
21.This being the 1st appeal, this Court’s duty is well established in the case of Selle & Another v Associated Motor Boat Co. Ltd. & Others  EA 123 where it was stated:
22.Having retracted its contention that it had never employed the respondent, it is now common ground that the respondent was employed by the appellant. What is in contention is whether she was entitled to the reliefs sought. It was the appellant’s submission that the respondent was fully compensated upon her resignation while the respondent’s contention was that her terminal dues were not paid. It is notable that while the respondent testified and called one witness in support of her case, the appellant did not call any witness or controvert the respondent’s claim.
23.Whereas the appellant contended that no evidence of the terms of employment, salary paid or payment of allowances and special damages was adduced, the respondent sought to have the appeal struck out for failure to meet the requirements of Rule 87 of the Court of Appeal Rules, 2010 (now Rule 89 of this Court’s Rules) which provides as follows:
24.We note that no formal application was made seeking to strike out the record of appeal and that no further explanation was given or elaboration made as to how the appeal failed to meet the mandated requirement of the law.
25.In the case of Peter Obwogo O & 2 others v H O Suing as Next Friend of P O (Minor) & another  eKLR this Court held thus:
26.In Intercounties Importers and Exporters v Teleposta Pension Scheme Registered Trustees & 5 others  KECA 44 (KLR) this Court relied on the decision in Deepak Chamanlal Kamani & Another vs. Kenya Anti-Corruption Commission and 3 Others, Civil Appeal (Application) No. 152 of 2009 (unreported) where the Court pronounced itself as follows:In the circumstances of this case, we find that the appeal as filed is competent.
27.There is no dispute that the respondent was employed as a security guard by the appellant between 31st August, 1997 and 15th August, 2004 when she resigned.
28.Regulation 2 of the Order identifies the employees to whom the Order applies in the following terms;
29.The question that then begs to be answered is whether the respondent was entitled to the remedies sought under the Order and awarded by the trial court.
30.The respondent in her plaint claimed the sum of Kshs.552,564.10 as her terminal dues upon resignation as outlined in paragraph 2 of this judgment.
31.It is notable that the appellant did not controvert the amounts claimed by the respondent. Section 10(7) of the Employment Act, 2007 provides as follows:(7)If in any legal proceedings an employer fails to produce a written contract or the written particulars prescribed in subsection (1) the burden of proving or disproving an alleged term of employment stipulated in the contract shall be on the employer.
32.Under the Regulation of Wages (Protective Security Services) Order 1998, the respondent was entitled to 15% of the basic pay as house rent allowance. The basic pay under the Order is Kshs. 4,335.00 while the respondent was paid a salary of Kshs. 4,500.00 The respondent claimed to have worked for the appellant for 6 years and 11 months. From the record, no evidence was adduced to controvert this claim. In the circumstances, we find that the respondent was entitled to a house allowance as claimed.
33.Regarding the claim for overtime of Kshs.315,792.00, the respondent claimed that she worked for 6 days a week from 6am to 6pm for 6 years without a break. The respondent also claimed for Public Holidays worked in the sum of Kshs. 27,495.60. She relied on Regulation 9 of the Order in support of these claims. It is notable that the appellant did not controvert these claims. We therefore find that the learned Judge did not err when he awarded the respondent the amounts claimed as overtime and payment for Public Holidays worked.
35.The respondent claimed payment in lieu of annual leave for the year 2004. The respondent worked for 6 months and 18 days having issued her resignation notice in July, 2004. Regulation 10 of the Order provides:
36.From the record, no evidence was adduced to controvert this claim. In the circumstances, we find that the learned Judge did not err in awarding the amounts claimed.
37.One of the benefits conferred on a person covered by the Order is payment of gratuity, which is provided for by Regulation 17 of the Order as follows in pertinent part:
38.Under Regulation 17 of the Order, the ill-health of the employee has to be certified by an independent qualified medical practitioner. The respondent did not adduce any evidence that her resignation arose from certified ill-health. See: Fidelis Mwanyumba v Total Security Surveillance (supra)
39.The respondent was a member of the NSSF and produced her NSSF card as proof that she was employed by the appellant. It was the appellant’s contention that in view of the respondent’s membership to NSSF she was not entitled to a service pay or gratuity. Section 35(5) of the Employment Act provides as follows:
40.In the circumstances, we find that the respondent was not entitled to service pay as claimed. With respect, we find that learned Judge erred in awarding service pay.
41.On the amount claimed as uniform refund, the respondent claimed that she bought uniform every year and was entitled to a refund of Kshs. 1,200.00. The appellant did not controvert this claim. As stated by the persuasive case of the ELRC (Linnet Ndolo, J.) in Peter Kimeu Mose and 13 Others v Mang Hotel and another  eKLR:
42.Further, Regulation 21 of the Order mandates employers to provide uniform to an employee and for an employee to return the same on termination. We therefore find that the learned Judge did not err in awarding Kshs.1,200.00 being uniform refund as claimed.
43.From the totality of the evidence, the appeal partly succeeds. In the final analysis, we find that the respondent is entitled to payment as follows:S. No. Item Amounta) 18 days worked in July 2004, 2,700.00b) Payment in lieu of annual leave in 2004, 3,600.00c) Refund of uniform deposit, 1,200.00d) House allowance for 6 years 11 months, 56,025.00e) Payment for public holidays worked 66 days, 27,495.60f) Overtime worked 4 hours per day for 6 years, 315,792.00Total. 406,812.60Less monies received, 18,500.00Total payable, 388,312.60
44.The amount due is payable with interest at court rates from date of filing suit until payment in full.
45.Each party shall bear their own costs of the appeal.