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Court of AppealDismissedCivil Appeal No. 18 of 2018· [2018] KECA 198 (KLR)

Patrick Lumumba Kimuyu v Prime Fuels (K) Limited [2018] KECA 198 (KLR)

Court of Appeal
8 November 2018
WKW. KaranjaMartha Karambu KoomeM. K. KoomeJOJ. Otieno-Odek
2,959 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that employees claiming holiday or Sunday pay must specify and prove the days worked, and NSSF members cannot claim service pay.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal at Mombasa from the Employment and Labour Relations Court (Makau J.), which had dismissed the appellant employee's claim for Kshs. 1,030,308 in terminal dues - service pay, Sunday pay and public holiday pay - and allowed the respondent employer's counterclaim for one month's pay in lieu of notice. The appellant, a truck driver who resigned on 10th April 2015 after about eight years of service, appealed contending that the trial court had erred in allocating the burden of proof and in disregarding sections 35(5) and 10(3)(a)(i) of the Employment Act. The Court of Appeal, in a unanimous joint judgment, identified the central question as whether the burden of proof was discharged. It held that although the Employment Act obliges an employer to keep employment records, that duty does not absolve an employee from proving his claim; the appellant's claim was omnibus, specifying no particular Sundays or public holidays worked, and the evidential burden would only have shifted to the employer once he proved the days worked. The Court followed Rogoli Ole Manadiegi v General Cargo Services Limited as a case on all fours. On service pay, the Court held the terms must be fixed by the contract and, in any event, the appellant's NSSF membership excluded him under section 35(6)(d). The counterclaim was upheld because the appellant gave no notice of resignation, as acknowledged in his letter. The appeal was dismissed with each party bearing its own costs, and the trial judgment was affirmed.

Key legal issues

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01

Burden of proof in claims for compensation for public holidays and Sundays worked

Holding

The burden lay on the employee to specify and prove the days worked; the employer's record-keeping duty does not absolve the employee of this burden

Reasoning

Sections 107-109 of the Evidence Act place the burden on the party who alleges. The appellant made an omnibus claim without specifying which Sundays or public holidays he worked. Although the Employment Act enjoins employers to keep records, the respondent categorically denied the work was done, so the heavier burden lay on the appellant. Only after such proof would the evidential burden shift to the employer to show payment.

p. 3
02

Entitlement to service pay under section 35(5) of the Employment Act

Holding

Service pay terms must be fixed by the contracting parties, and an NSSF member is excluded from service pay under section 35(6)(d)

Reasoning

Section 35(5) entitles an employee whose contract is terminable by notice to service pay on terms 'shall be fixed', presumptively by the parties. The employment contract here contained no such terms, so there was no basis for the rate claimed. Further, the appellant was an NSSF contributor as shown by his payslips, excluding him from service pay under section 35(6)(d).

p. 3
03

Counterclaim for one month's pay in lieu of notice

Holding

The trial court properly allowed the counterclaim as the appellant gave no notice and the contract required a month's notice or pay in lieu

Reasoning

The appellant resigned without the requisite one month notice, acknowledged in his resignation letter by inviting deductions from his final dues. That fact was never contested. Clause 13 of the employment contract required either party to give a month's notice or pay salary in lieu, so the award on the counterclaim was proper.

p. 4
04

Duty of a first appellate court

Holding

A first appellate court must re-evaluate, re-assess and re-analyse the evidence and reach its own conclusions

Reasoning

The Court restated the well-established duty of a first appellate court, drawing on Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates, to re-evaluate the evidence on the record and determine whether the trial court's conclusions stand, giving reasons either way.

p. 2

Legal principles established

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  • In a claim for overtime/public holiday/Sunday pay, the employee bears the burden of first proving the days worked; the employer's duty to keep records does not shift that initial burden, and the evidential burden shifts to the employer only upon such proof
  • An employee who is a member of NSSF is statutorily excluded from a claim for service pay under section 35(6)(d) of the Employment Act

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Each party to bear its own costs of the appeal

Authorities

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Legislation

  • Employment Actsection 35(5)
  • Employment Actsection 35(6)(d)
  • Employment Actsection 10(3)(a)(i)
  • Evidence Act (Cap 80, Laws of Kenya)sections 107-109

Cases cited (3)

  • Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates
    [2013] eKLR
  • Jennifer Nyambura Kamau v Humphrey Mbaka Nandi NYR CA Civil Appeal No. 342 of 2010
    [2013] eKLR
  • Rogoli Ole Manadiegi vs. General Cargo Services Limited
    (2016) eKLR
On appeal from
Employment and Labour Relations Court at Mombasa
ELRC Cause No. 181 of 2016
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (employment dispute appeals from the ELRC)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Patrick Lumumba Kimuyu v Prime Fuels (K) Limited [2018] KECA 198 (KLR)", Case Analysis (2018). Civil Appeal No. 18 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/198/eng@2018-11-08

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.