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ELRCPartially AllowedMemorandum of Claim filed 16 September 2011 (number not stated in judgment)· [2013] KEELRC 657 (KLR)

Daudi Haji v Kenya Ports Authority [2013] KEELRC 657 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
26 July 2013
2,109 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled that Kenya Ports Authority had to pay a worker for thousands of unpaid extra hours, holding that unpaid compelled overtime is an unfair labour practice.

What this practically means

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Executive summary

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Daudi Haji, a retired Master Harbour Tug of Kenya Ports Authority, claimed Kshs 940,000/- for 4128 extra ('shorthand') hours worked between 2003 and December 2006 owing to staffing shortages, invoking section 17 of the Employment Act. The Respondent conceded the hours were worked but pleaded that no contract, circular, appointment letter or HR Manual provided for payment, and that the claim was time barred under section 66 of the Kenya Ports Authority Act, which required notice and commencement within twelve months. The court held that section 66 applies only to acts done in execution of the Authority's statutory powers under sections 12 to 17 of that Act, not to employment disputes, which fall under section 90 of the Employment Act, the Labour Relations Act timelines, or section 4(1) of the Limitation of Actions Act. Alternatively, since the unpaid compelled extra hours engaged the repealed Constitution's prohibition on slavery and servitude and Article 41's fair labour practices and fair remuneration guarantees, no limitation period applied, following Wachira Waheire v Attorney General as adopted in Harun Thungu Wakaba. Although the Staff Regulations showed no contractual basis for payment, the court held that failing to compensate compelled extra hours was an unfair labour practice analogous to slavery and that the Respondent's ex gratia payment of Kshs 50,000/- did not amount to fair remuneration. The court ordered payment of the 4128 hours at normal overtime rates, with computation by agreement within seven days failing which the County Labour Officer would tabulate the amount, mention on 19 August 2013, and made no order as to costs.

Key legal issues

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01

Applicability of section 66 of the Kenya Ports Authority Act to employment claims

Holding

Section 66 applies only to acts done in pursuance of the Authority's statutory powers, not to disputes arising from contracts of employment; the applicable limitation regime is section 90 of the Employment Act or section 4(1) of the Limitation of Actions Act

Reasoning

The court read section 66 as covering proceedings for acts done in execution of the Authority's statutory functions under sections 12 to 17 of the Kenya Ports Authority Act. Entering contracts of service is not such an act. Employment disputes therefore fall under employment-specific limitation rules, and since the cause of action (2003-2006) predates the Employment Act 2007, section 4(1) of the Limitation of Actions Act would apply. Alternatively, constitutional protection of workers defeats the limitation defence.

p. 2
02

Whether the Claimant was entitled to payment for the 4128 shorthand hours

Holding

Yes. Although the Staff Regulations extract produced showed no contractual basis for payment, the employer's acknowledgement of the hours and its internal approval of an ex gratia payment could not substitute for fair remuneration; the hours are to be paid at normal overtime rate

Reasoning

The court found the employer-employee relationship is one of mutual trust and good faith. The Respondent acknowledged the 4128 extra hours through its Principal Personnel Manager's memo of 15 July 2009 and internally approved an ex gratia payment, yet pleaded no contractual or statutory basis for payment. Refusing compensation for compelled extra hours was an unfair labour practice contrary to constitutional guarantees of fair labour practices and fair remuneration.

p. 4
03

Constitutional dimension of unpaid extra hours

Holding

Not every refusal to pay overtime attracts constitutional intervention, but where the employer denies any contractual basis or pleads high expenditure, constitutional questions on workers' rights and forced labour arise

Reasoning

The court was careful to limit the constitutional holding: unpaid overtime does not automatically trigger constitutional adjudication. It does so where the employer refuses payment and pleads absence of contractual foundation or cost concerns, as the Respondent did here, engaging the repealed Constitution's prohibition of slavery and servitude and Article 41's fair labour practices and fair remuneration guarantees.

p. 3

Legal principles established

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  • Legal proceedings arising out of the employment relationship with the Kenya Ports Authority are subject to the limitation provisions of the Employment Act (section 90) or the Limitation of Actions Act, not section 66 of the Kenya Ports Authority Act
  • Where a claim implicates violation of constitutional rights of workers (slavery, forced labour, fair labour practices), no limitation period applies
  • Failing to pay or compensate an employee for work done beyond normal agreed hours amounts to an unfair labour practice analogous to slavery and servitude and is inconsistent with fair remuneration and reasonable working conditions

Court orders

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  1. 1.The Respondent to pay the Claimant for the 4128 shorthand hours worked, calculated as normal overtime hours
  2. 2.The parties to agree on the calculations within 7 days, failing which the Claimant to furnish the County Labour Officer with a copy of the Respondent's memo dated 15 July 2009 and the judgment to enable him tabulate the amount owing at normal overtime rate
  3. 3.Mention on 19 August 2013 for the parties/County Labour Officer to submit to the Court the agreed cash equivalent of the 4128 hours
  4. 4.No order as to costs

Authorities

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Legislation

  • Employment Actsection 17
  • Employment Actsection 90
  • Kenya Ports Authority Actsection 66
  • Kenya Ports Authority Actsections 12, 13 to 17
  • Labour Relations Acttimelines for dealing with trade disputes
  • Limitation of Actions Actsection 4(1)
  • Constitution of Kenya (2010)Article 41
  • Repealed Constitution of KenyaChapter 5, section 73
  • Employment Act Cap 226 (repealed)working hours provisions (absent)
  • Regulation of Wages and Conditions of Employment Act Cap 229 (repealed)Wages Regulation Orders
  • Public Authorities Limitations Actsection 3 (as cited in quoted passage)
  • Constitution of Kenya (as cited in quoted passage)Section 3

Cases cited (2)

  • Harun Thungu Wakaba v Attorney General
    (2010) eKLR
  • Wachira Waheire v the Hon Attorney General
Jurisdiction invoked
Employment and labour relations dispute under Article 41 of the Constitution and the Labour Relations Act; claim founded on section 17 of the Employment Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Daudi Haji v Kenya Ports Authority [2013] KEELRC 657 (KLR)", Case Analysis (2013). Memorandum of Claim filed 16 September 2011 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/657/eng@2013-07-26

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