1. By a memorandum of claim filed on 19th September, 2017,
the claimant pleaded among others that:
a) The claimant herein was employed by the defunct Kitale Municipal Council on 1st January, 1997 in the department of Health as Mosquito searcher until 27th June, 2000 where he retired.
b) The claimant claims that he worked for the defunct municipal Council for a period of 23 years, 5 months and 27 days.
c) It is the claimant’s case at the time of his retirement, his benefits were calculated and he was entitled to Kshs.159,230.20 and which sum was calculated on the 13th February, 2009.
d) It is the claimant’s claim that in or about 2010 the respondent herein took over all assets and liabilities of the defunct Municipal Council of Kitale.
e) The claimant states that he had not been paid his
benefits to date and which he now claims.
2. The respondent filed a response on 16th January, 2018 and
stated inter-alia:
i. The respondent avers that the claimant was an employee of
its predecessor for the period mentioned on permanent basis earning salary on a monthly basis.
ii. The respondent further avers that the claimant by virtue of
being an employee of the Local Authority enrolled into a Pension Scheme under the Local Authorities Provident Fund (LAPFUND).
iii. The respondent avers that it was expressly warranted that
the defendant would collect and remit the claimant’s and other employee’s contributions to the fund which the defendant faithfully obliged.
iv. The respondent asserts that its responsibility was limited to
collecting and remitting members’ contribution.
v. The respondent asserts that the LAPFUND being a statutory
authority established under CAP 272 Laws of Kenya is a corporate legal entity capable of suing and being sued in its own capacity.
vi. The respondent further asserts that the affairs, duties and
responsibilities of LAPFUND as clearly spelt and the relevant statute and are not in any way dependent, subject or affiliated to those of the respondent.
vii. The respondent states that it is privy to the fact that the
claimant was partially paid his benefits in the year 2002.
viii. The respondent further states that the partial payment
made to the claimant in 2002 were due by the LAPFUND and not the defendant’s predecessor.
ix) The respondent avers that there is no form of privity of contract
between itself and the claimant thus no claim can be directed to it.
3. On 1st December, 2022 the court considering the nature of
the dispute, did order that the matter proceeds by way of
written submissions.
4. The claimant submitted inter-alia that the defunct Kitale
Municipality Council was supposed to remit the money to
Local Authorities Provident Fund (LAP – FUND) to enable the
fund pay out the money to the claimant. A letter was written
to the Town Clerk of Kitale Municipal Council but no step
was taken to remit the money. The fund could not therefore
pay what they did not have. The respondent did not remit
the money to the fund and that was clearly spelt out by the
letter dated 22nd June, 2006.
5. Counsel further submitted that the respondent did not file
any document to show that it remitted the claimant amount
to the fund or complied with the letter dated 22nd June,
2006. Further the transition to Devolved Government Act
No.1 of 2012, Section 3 there of transferred all the assets
and liabilities of the defunct Municipal Councils to the
County Governments. Hence all liabilities and assets were
taken over by the County Government of Trans-Nzoia from
the defunct Kitale Municipality Council.
6. The Respondent on the other hand submitted that it had
contractual relationship between itself and Lap Fund which relationship between itself and Lap Fund which relationship
imposed a responsibility on the respondent to deduct certain
percentage of money from its employees salary and remits
the same to the fund to be invested for members and paid
out to such member upon retirement. The respondent
submitted that it faithfully remitted the claimant’s share to
the fund. According to the respondent, its mandate ended
then. The claimant ought to have raised the claim against
Lap fund.
7. As observed earlier, when this matter came before me on 1st
December 2022, I noted that the matter was a straight
forward one and ought to have been amicably settled. It
involves payment of the claimant’s retirement benefits which
had been computed at Kshs.159,230.20.
8. The respondent has contended that it faithfully remitted
deductions from its employees including the claimant
however, did not provide any evidence or sample thereof that
it did so.
9. If indeed the respondent remitted dutifully deductions from
its employees, one wonders why Mrs. A. W. Njoroge, the
Acting Chief Administrative Officer wrote the letter dated 22nd
June, 2006 asking the respondent to remit additional funds.
The respondent furnished no response to this letter as well
for perusal by the court.
10. It is therefore evidently clear that the respondent did not
remit the claimants deductions. The argument that the
contractual relationship was only between the respondent
and Lap Fund is diversionary and only meant to frustrate the
claimant. The respondent deducted money from the claimant’s salary but not remit the same to the fund. The
claimant therefore has a legitimate cause of action against
the respondent because the fund cannot pay out money it
never received from the respondent.
11. In conclusion the claimant is entitled to judgment against the
respondent for the payment of the sum claimed.
12. The court therefore enters judgment against the respondent
for Kshs.159,230.20 together with interest therein at court
rates from the date of this judgment until payment in full.
The claimant shall further have costs of the suit.
It is so ordered.
Dated, Signed and Delivered virtually at Nairobi on this ………day of…………………2023
Abuodha J. N.
Judge
In the presence of:-
…………………………………………………… for the Claimant
……………………………………………………. for the Respondent
the claimant pleaded among others that:
a) The claimant herein was employed by the defunct Kitale Municipal Council on 1st January, 1997 in the department of Health as Mosquito searcher until 27th June, 2000 where he retired.
b) The claimant claims that he worked for the defunct municipal Council for a period of 23 years, 5 months and 27 days.
c) It is the claimant’s case at the time of his retirement, his benefits were calculated and he was entitled to Kshs.159,230.20 and which sum was calculated on the 13th February, 2009.
d) It is the claimant’s claim that in or about 2010 the respondent herein took over all assets and liabilities of the defunct Municipal Council of Kitale.
e) The claimant states that he had not been paid his
benefits to date and which he now claims.
2. The respondent filed a response on 16th January, 2018 and
stated inter-alia:
i. The respondent avers that the claimant was an employee of
its predecessor for the period mentioned on permanent basis earning salary on a monthly basis.
ii. The respondent further avers that the claimant by virtue of
being an employee of the Local Authority enrolled into a Pension Scheme under the Local Authorities Provident Fund (LAPFUND).
iii. The respondent avers that it was expressly warranted that
the defendant would collect and remit the claimant’s and other employee’s contributions to the fund which the defendant faithfully obliged.
iv. The respondent asserts that its responsibility was limited to
collecting and remitting members’ contribution.
v. The respondent asserts that the LAPFUND being a statutory
authority established under CAP 272 Laws of Kenya is a corporate legal entity capable of suing and being sued in its own capacity.
vi. The respondent further asserts that the affairs, duties and
responsibilities of LAPFUND as clearly spelt and the relevant statute and are not in any way dependent, subject or affiliated to those of the respondent.
vii. The respondent states that it is privy to the fact that the
claimant was partially paid his benefits in the year 2002.
viii. The respondent further states that the partial payment
made to the claimant in 2002 were due by the LAPFUND and not the defendant’s predecessor.
ix) The respondent avers that there is no form of privity of contract
between itself and the claimant thus no claim can be directed to it.
3. On 1st December, 2022 the court considering the nature of
the dispute, did order that the matter proceeds by way of
written submissions.
4. The claimant submitted inter-alia that the defunct Kitale
Municipality Council was supposed to remit the money to
Local Authorities Provident Fund (LAP – FUND) to enable the
fund pay out the money to the claimant. A letter was written
to the Town Clerk of Kitale Municipal Council but no step
was taken to remit the money. The fund could not therefore
pay what they did not have. The respondent did not remit
the money to the fund and that was clearly spelt out by the
letter dated 22nd June, 2006.
5. Counsel further submitted that the respondent did not file
any document to show that it remitted the claimant amount
to the fund or complied with the letter dated 22nd June,
2006. Further the transition to Devolved Government Act
No.1 of 2012, Section 3 there of transferred all the assets
and liabilities of the defunct Municipal Councils to the
County Governments. Hence all liabilities and assets were
taken over by the County Government of Trans-Nzoia from
the defunct Kitale Municipality Council.
6. The Respondent on the other hand submitted that it had
contractual relationship between itself and Lap Fund which relationship between itself and Lap Fund which relationship
imposed a responsibility on the respondent to deduct certain
percentage of money from its employees salary and remits
the same to the fund to be invested for members and paid
out to such member upon retirement. The respondent
submitted that it faithfully remitted the claimant’s share to
the fund. According to the respondent, its mandate ended
then. The claimant ought to have raised the claim against
Lap fund.
7. As observed earlier, when this matter came before me on 1st
December 2022, I noted that the matter was a straight
forward one and ought to have been amicably settled. It
involves payment of the claimant’s retirement benefits which
had been computed at Kshs.159,230.20.
8. The respondent has contended that it faithfully remitted
deductions from its employees including the claimant
however, did not provide any evidence or sample thereof that
it did so.
9. If indeed the respondent remitted dutifully deductions from
its employees, one wonders why Mrs. A. W. Njoroge, the
Acting Chief Administrative Officer wrote the letter dated 22nd
June, 2006 asking the respondent to remit additional funds.
The respondent furnished no response to this letter as well
for perusal by the court.
10. It is therefore evidently clear that the respondent did not
remit the claimants deductions. The argument that the
contractual relationship was only between the respondent
and Lap Fund is diversionary and only meant to frustrate the
claimant. The respondent deducted money from the claimant’s salary but not remit the same to the fund. The
claimant therefore has a legitimate cause of action against
the respondent because the fund cannot pay out money it
never received from the respondent.
11. In conclusion the claimant is entitled to judgment against the
respondent for the payment of the sum claimed.
12. The court therefore enters judgment against the respondent
for Kshs.159,230.20 together with interest therein at court
rates from the date of this judgment until payment in full.
The claimant shall further have costs of the suit.
It is so ordered.
Dated, Signed and Delivered virtually at Nairobi on this ………day of…………………2023
Abuodha J. N.
Judge
In the presence of:-
…………………………………………………… for the Claimant
……………………………………………………. for the Respondent