Nguli v Southern Sky Safaris Limited & another (Cause E091 of 2023)

[2025] KEELRC 50 (KLR) (23 January 2025) (Judgment)

REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT MOMBASA
CAUSE E091 OF 2023
M MBARŨ, J
JANUARY 23, 2025

BETWEEN
FLORENCE NGULI .................................................................................. CLAIMANT

AND
SOUTHERN SKY SAFARIS LIMITED ....................................... 1ST RESPONDENT
PHILEMON MWAVALA .............................................................. 2ND RESPONDENT

JUDGMENT

1. During the hearing, the claimant was acting in person. The claim is for wrongful deductions of salary,
refusal to pay leave, overtime, transport allowance and service.

2. The claimant is a female adult. The 1st respondent is a limited liability company. The 2nd respondent
is the proprietor of the 1st respondent.

3. The respondents employed the claimant in October 2018 as a tour and reservation manager. On 31st
July 2023, the claimant resigned from her employment. At the time, she was earning Ksh.100, 000
per month.

4. The claim is that upon her resignation, the respondent refused to pay the claimant her terminal
dues. She gave two months' notice but her dues were not processed. She resigned due to the refusal
by the respondents to pay her accrued dues in salary and the continued withholding of the same is
unreasonable, unfair and meant to deny her livelihood. The claimant is seeking the following dues;

a. 3 months’ salary in notice pay Ksh.300,000;

b. Service pay for 4 years Ksh.240,000;

c. Overtime Ksh.156,300;

d. Leave for 4 years Ksh.400,000;

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 e. Outstation transport allowance Ksh.200,000;

f. Deductions during Covid Ksh.1,245,438;

g. Certicate of services;

h. Costs of the suit.

5. The claimant testied in support of her case that she was employed by the respondent through a letter
dated 8 October 2018 as a tour and reservations manager, earning Ksh.70,000 per month. The Salary
was increased to Ksh.100 000 per month by 2023, when she resigned.

6. The claimant testied that despite working diligently and over time, she was overworked and
underpaid. During the COVID pandemic, the respondent made unlawful deductions from her salary
and has since refused to make payments, leading to her resignation.

7. During COVID, the respondents only paid Ksh.13, 000 and Ksh. 33,171 on alternate months between
April 2020 to July 2021 instead of Ksh.100, 080 per month.

8. For 8 months, the salary is due at Ksh. 100,080 was reduced and what is due is Ksh.800, 640.

9. For 8 months she was paid Ksh. 33,171 instead of Ksh.100, 080 and there is a due amount of Ksh.538,
272.

10. From July 2022, the respondents paid the claimant Ksh.33, 171 instead of Ksh.100, 080, and for 12
months, what is due is Ksh. 1,200,960.

11. The illegal deductions were Ksh.2, 034,820, which is the amount due.

12. The claimant testied that the respondents allege that the salary deduction during COVID-19 was
justied, but a request to have the audited accounts for the period was not complied with. The
respondents have not produced bank statements proving they face nancial problems, hence the salary
reduction. The claimant asked for oce security locks to show that she worked late and was unpaid,
but the respondent refused to comply.

13. The claimant testied that she is entitled to service pay for 4 years and 10 months. For two years, her
annual leave for 2019 and 2020 was not paid, and she was not paid the leave allowances, which the
respondent does not contest.

14. Overtime work and transport allowance are benets the respondents should pay. In 2019, the claimant
worked for 5 hours each day for 6 days each week. An hour is Ksh.417, and the total due is Ksh.650,
150. While the claimant was not in the station, she incurred transport costs of 20,000 and for 3 trips,
she is entitled to ksh.60, 000. She would travel to her home county, Makueni and use other means
of transport to save the allocated vehicle, but the respondents refused to refund her transport costs.
Whenever she travelled to Nairobi by air, she used other means of transport to save the respondents
huge costs, but the refunds were not processed.

15. There is no response to the claims made to challenge that the claims made are not due.

16. In response, the respondents admitted that the claimant was an employee of the rst respondent from
8 October 2018, earning Ksh. 70,000 per month plus a house allowance of Ksh. 14,000. She had 24
annual leave days. The salary increased to Ksh.100 000 per month when she resigned on 31 July 2023
and gave 2 months' notice. Upon the voluntary resignation, the rst respondent paid all terminal dues.

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17. The claims made are not justied. Notice pay is not due since the claimant resigned from her
employment. Service pay is unjustied since the respondents complied with the deduction of statutory
payments to NSSF and NHIF. The claimant was part of management and cannot claim overtime
payments. She took her annual leave in full.

18. The outstation transport allowances are not payable because the claimant had a fully fueled company
vehicle to meet all her transport expenses. The provision of transport allowances was not contractual.

19. The claim for salary deductions was lawful. Covid deductions are not payable as the 1st respondent's
activities were not ongoing due to the pandemic. The 1st respondent was compelled to stop all tour-
related activities immediately owing to the worldwide eects on international and domestic travel.
Despite the claimant not being at work, the 1st respondent paid 50% salary until the pandemic
restrictions were lifted. The claims made should be dismissed with costs to the respondents.

20. The 2nd respondent, Philemon Mwavala, the managing director of the 1st respondent, testied in
support of the response that the 1st respondent employed the claimant, and there is no cause of action
established against him as the second respondent. Employment was by the rst respondent, and the
joinder herein is unjustied.

21. Mr Mwavala testied that on 18 October 2018, the 1st respondent employed the claimant and issued
her a written contract. Her position as tour and reservations manager at a gross salary of Ksh.84,
000 inclusive of house allowance. On 3 July 2023, the claimant issued a resignation notice, which he
accepted even though the notice was shorter than required under the contract. The claimant forfeited
one month's leave pay as restitution from work. At the time, the claimant was earning Ksh.100, 080
per month.

22. Mr Mwavala testied that the claimant's claims were without merit. She resigned from her employment
voluntarily and cannot claim notice pay. All statutory payments were made, and service pay is not
due. As a senior manager, the claimant had no overtime claims, and all leave dues were paid upon
resignation.

23. The claimant was allocated a company vehicle, KBQ 417A, which was serviced, fueled, and available for
her use. She cannot justify transport allowances outside such benets. Upon resignation, the claimant
declined to return the vehicle, and the respondents were forced to seek police assistance for its return.
The car was allocated with employment, and upon resignation, the claimant could not justify the
retention of the vehicle. She later abandoned the car at a garage.

24. During the COVID pandemic, all employees were required to remain home, and the 1st respondent
continued to pay 50% of the due salary. The 1st respondent adhered to government restrictions on
travel and could not aord to keep employees on full salary; hence, the claim for deducted salaries is
not justied.

25. The claim was led in Mombasa instead of Malindi and should be transferred and dismissed for want
of jurisdiction.

26. At the close of the hearing, both parties agreed and led written submissions.

27. The pleadings, evidence and written submissions are analyzed, and the issues which emerge for
determination can be summarized as follows;

1. Whether the remedies sought should be issued;

2. Who should pay the costs?

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28. As outlined above, the claimant was initially represented by her advocates but later opted to act in
person.

29. During the hearing on 7 October 2024, the claimant admitted that the notice pay claim was not due
since she served the notice period upon resignation.
The claims are for;

1. Service pay for 4 years;

2. Overtime pay;

3. Leave pay for 2 years in 2019 and 2020;

4. Claim for out of station transport allowances;

5. Salary deductions during the Covid pandemic.

30. Before addressing these issues, the 2nd respondent challenged his joinder to these proceedings since the
employer was the 1st respondent. Indeed, the contract of service dated 8 October 2018 was issued by the
1st respondent and not the 2nd respondent. Even though the two respondents are interlinked and closely
connected, the employment relationship was between the claimant and the 1st respondent. The 2nd
respondent was not a necessary party in these proceedings but this issue ought to have been addressed
before the matter progressed this far.

31. On ling the claim in Mombasa instead of the Malindi ELRC registry, the parties appreciated that
the registry at Malindi is currently covered under the main station of Mombasa. For access to justice,
parties are served at Malindi or Mombasa registries. For ease of workload for the court, jurisdiction
is national save to allow physical access. The boundaries on whether to le a matter in Mombasa or
Malindi should not be a bar.

32. Service pay is a benet due under Section 35(5) and (6) of the Employment Act. It accrues when the
employer has not placed the employee under pension cover or medical scheme or has failed to remit
statutory dues as required under the law. Service pay is also due when parties agree to confer such
benet under the written contract.

33. The claimant was under a written contract of employment. Part of the work records led includes the
payment statements for each month. The 1st has conrmed that there were payments of statutory dues
to NSSF and NHIF for the claimant's benet. Under the contract, there is no service pay benet at
the end of employment.

34. On the claim for overtime, this, in its nature, is a continuing injury as it arises monthly and should
be addressed as and when it accrues or upon 12 months after cessation thereof. This is now the
accepted principle guiding the court as held by the Court of Appeal in the case of Ol Pejeta Ranching
Limited v David Wanjau Muhoro [2017] KECA 329 (KLR); Attorney General & Ministry of State
for Immigration & Registrar of Persons v Andrew Maina Githinji & Zachary Mugo Kamunjiga [2016]
KECA 817 (KLR); and The German School Society & another v Ohany & another [2023] KECA
894 (KLR) where the court held that a claim premised on a continuing injury must be led with 12
months after cessation of the injury or damage.

35. In this regard, overtime claims were due; these accrue monthly, and as such, an aggrieved employee
should address them under the protections of Section 46(h) of the Employment Act. In this case,
the claimant testied that as the manager, she was forced to work 5 hours or more daily to keep up
with work requirements. As the manager in charge of her work, the need to work overtime was not

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 a direction of the employer. It was a personal decision to cope with her work. Where the employee
decides to work overtime, such as not being a requirement of the employer, the basis for a claim for
overtime pay is lost.

36. Where the employer requires overtime work, records must be kept and approved. Otherwise, the
claimant's need to work for over 5 hours each day to the detriment of her health and family did not
arise from the employer's requirement. As a manager in her department, the claimant did not formally
raise the need for overtime work with the employer for approval.
The claim for overtime pay is not justied.

37. On the claim for leave pay for 2019 and 2020, under section 28 of the Employment Act, taking annual
leave is a legal right. However, this right is regulated. Annual leave must be taken as and when due. It
will not be accumulated for over 18 months under Section 28(4) unless the employer has approved the
carrying over of accrued leave days.
The claim for leave allowances instead of taking annual leave is not provided for under the employment
contract.

38. On the claims for outstation travel allowances, as submitted by the respondents, under the
employment contract, the claimant was provided with a company vehicle for all her transport needs.
Such facilities and benets were at her disposal without conditions. The option to travel on one's
account and outside the provided benet and then claim for the provision of allowances is unjustied.
The claimant's case that she was saving the respondent's costs by opting to travel to Makueni County
and Nairobi without the company vehicle is not approved for her claim of transport allowances.

39. The purpose and allocated benet of a company car are lost when the claimant opts to leave it behind
and opt for other modes of transport/travel. The workstation is noted as Malindi. The need to travel
out of the station must be with the approval of the employer, which is not the case here.

40. On the claim for salary deductions during COVID, a challenge of a contract term or condition must
be with the written approval of the employer as required under Section 10(5) of the Employment Act;

(5) Where any matter stipulated in subsection (1) changes, the shall, in consultation with the
employee, revise the contract to reect the change and notify the employee of the change in
writing.

41. Any change(s) to the employment contract must be in writing and with the approval of the
employee. See Nyangendo v Road Focus Consulting Limited [2023] KEELRC 812 (KLR); Anthony
v Communications Authority of Kenya & 3 others [2022] KEELRC 1117 (KLR) the court held that;

Section 10(5) of the Employment Act, 2007 required that any change to the employment
contract be made in consultation with the subject and aected employee and upon the
revision of the contract of service, it had to be done in writing, and the subject employee(s)
must signify his/her consent to the change/revision. In the instant case, where indeed
the respondent had made changes, revised and or reviewed the terms and conditions of
employment of any employee, there was a need for interrogation as to whether written
consent and approval were obtained and, if so, whether any matter aggrieved the subject
employee and if not, the matter must rest as the consent entered into in any other
matter between another employee(s) and the CAK had to be looked at in its own merits.
Employment was personal and specic, and every employment contract had to be addressed
in its terms and conditions.

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42. In this case, the respondents assert that due to the COVID-19 pandemic, they were forced to close
down operations and opted to pay 50% of their salary while the claimant and other employees remained
at home. The employer is only required to pay an employee who is at work. The COVID-19 pandemic
was a result of government restrictions and aected travel worldwide; hence, the option to keep the
claimant on 50% salary was not mandatory but discretionary.

43. The respondents also assert that a force majeure led to events and could not pay the claimant her full
salary. However, in employment and labour relations, the employment contract is sanctied. Indeed,
the law drafters found it necessary to allow for lawful termination of employment under Section 40
of the Employment Act, where the employer is operationally unable to sustain an employee(s) due to
events beyond its control. The employer can recall the employee back at the end of such event(s).

44. Such an eventuality gives the employer a lawful reason to end employment and, on the other hand,
gives the employee a fair chance to look for alternative employment.
The contractual payment is due without any written approval/consent to reduce salary.

45. In this case, the 2nd respondent wrote to the claimant through an email dated 30 April 2020 about
austerity measures. He noted that due to the COVID-19 pandemic, the company suered a sudden
loss in early March 2020. He proposed that;

… Further to our telephone conversation, it is prudent that we cut costs in any way we can to
survive this scourge. In this thread, I call upon individual input of support to the company
to see us through these dicult times, as mentioned earlier.
As discussed, the company will push to pay you 50% of your salary every month (Skipping
a month), eective this month. … Kindly conrm your concurrent by return email. …

46. The claimant replied on 3 May 2020 that;

… I concur with you that we have to take some measures to stay aoat, and I agree with the
50% pay cut. However, skipping a month without pay is too punitive, considering we had a
very busy and successful season, which was cut short by only two weeks into the low season.
… I humbly request that the company take care of my rent in the subsequent months (when
there is no pay). I have tried talking to the landlord about deferring or reducing my rent, but
he is adamant that his houses are the cheapest in Malindi.
I am condent that this will, too, come to pass and that we will make a full recovery soon. …

47. The claimant approved and consented and proposed that her rent be paid. In her evidence in court
on 7 October 2024, the claimant admitted that the respondents paid her rent but continued to make
salary deductions.

48. Under section 10(5) of the Employment Act, the respondents made a written proposal to vary the
employment terms and conditions, particularly the salary due, and gave the reasons for such action. In
concurrence, the claimant made a written response and agreed to the variation.
The salary review is lawful and justied.

49. Before conclusion, what emerged as the main issue leading to the claimant's resignation from her
employment was what she noted as frustrations and low pay. For 5 years, she had trained other
employees who were paid better while she worked overtime without compensation. She stated that
she had neglected to take care of her family and her employment. But she felt she was placed under
intolerable working conditions and her employment was no longer tenable.

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50. As outlined above, the claimant was represented by her advocates but later opted to act in person.
Where the employee nds her continued employment untenable and is forced to resign, the court
jurisprudence has adopted the concept of constructive dismissal as an acceptable mode of seeking
remedy. However, the claimant did not plead such a matter to allow the court to apply it and remedy
her case. To the court, the claimant stood out as a diligent employee who oered her best energy to the
employer but was forced to tender her resignation due to what she honestly believed was frustration
and being placed under intolerable working conditions. However, the court can only award what is
pleaded, particularly when the claimant is represented by her advocates.

51. On the whole, the claim is found without merit. The claimant acted in person, but the respondents
attended as required and are entitled to their costs. These shall be paid at 25%.

52. Accordingly, the claim is without merit and is hereby dismissed. The claimant is to meet 25% of the
respondent's costs.
DELIVERED IN OPEN COURT AT MOMBASA THIS 23 DAY OF JANUARY 2025.
M. MBARŨ
JUDGE
In the presence of:
Court Assistant: Japhet
……………………………………………… and ………………….………………………

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