Employers are liable for a fine of up to Ksh100,000 or a jail term of two years if they fail or delay to remit their employees' salaries as agreed upon during the onboarding process.
According to Kenyan law under the employment act, it is an offence for an employer to fail to make the payment or render the wages earned by or payable to an employee.
In an exclusive interview with kenyans.co.ke, lawyer Duncan Oketch explained that in addition to the fine payable to the court, employees must also receive their backdated payment as well as compensation for the damages caused by the lack of payment.
“The Act criminalises failure to pay employees and the employers can be taken to court. That is why there is a fine and a jail term.
“However, that is not the end of the matter because an employee can file a lawsuit to claim whatever amount owed. That will be in addition to the money paid to the court,” Oketch stated.
Lawyer Martin Oloo further confirmed to Kenyans.co.ke that an employer would be compelled to pay the fine by the court of law and additionally compensate the employees because it was an offence.
The lawyers argued that an employee had room to sue an employer who failed to issue the required salary in the Employment and Labour Relations Court (ELC) through a civil process.
“The court can order the employer to issue the employee with a compensation of up to any amount, for the trauma caused as a result of not being able to meet some of their obligations, maybe their children were sent away for school fees,” Oketch stated.
The move, according to Oketch, was an easy process once the employer was found guilty or pleaded to have committed the offence
“Once the employer is found guilty, there is no argument about it. The rest of the process is just a declaratory process by the court ordering for compensation.
“One can also sue for emotional damages and psychological torture because of what they have gone through as a result of not getting the payment,” Oketch added.
Moreover, Oketch stated that in cases where the employer is a foreign company, other steps can be taken to evaluate and determine if the organisation can retain the license that allows it to operate in Kenya.
He added that the Labour Relations Court would further conduct inspections after the ruling to ensure that the employers did not continue to infringe on the rights of the employees.
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