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ELRCPartially AllowedNot stated in judgment· [2013] KEELRC 905 (KLR)

Hellen Njoki Kiboi v Harun Mwangi Muriithi & 2 others [2013] KEELRC 905 (KLR)

Employment and Labour Relations Court
29 November 2013
967 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled a water society's worker was a lawful employee and awarded her unpaid salary, overtime, leave pay and costs.

What this practically means

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Executive summary

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The claimant, Hellen Njoki Kiboi, sued Wiyumiririe Water and Sanitation Society seeking a declaration that she was its lawful employee, payment of withheld salary from 1.09.2011 to 31.01.2013 (Kshs.212,500), overtime of Kshs.30,198, leave pay for 2010-2012 (Kshs.37,500), monthly pay pending determination, costs and interest. She was interviewed on 9.02.2010, appointed on 10.02.2010 and reported on duty on 12.02.2010 at a salary of Kshs.12,500 per month. Her employment ended abruptly on 24.02.2012 when the respondent's offices were demolished amid leadership conflicts. She testified she was unpaid from 1.09.2011, worked unpaid early mornings selling water from 6.00 am to 9.00 am, and never took annual leave. Her claim for future earnings was dropped. CW2, the respondent's former chairperson, corroborated her evidence. RW, the current chairperson, alleged she failed to account for revenues and ceased work on 13.02.2012, and relied on an agreement of 18.12.2012 at the labour office; the claimant denied signing it. The court framed one issue: whether the claimant was entitled to the remedies prayed for. It found the employment relationship established, RW's contradictory evidence incredible, and the claimant's documents reliable. It awarded unpaid salary of Kshs.73,214.30, leave pay of Kshs.26,458.00 for 2 years and 2 months under section 28 of the Employment Act, 2007, and overtime of Kshs.30,198.00, totaling Kshs.129,870.60, payable by 15.12.2013 with interest at court rates from the filing date in default, plus costs.

Key legal issues

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01

Whether the claimant was an employee of the respondent

Holding

The court found the claimant was the respondent's employee at all material times, rejecting the respondent's witness's contradictory evidence as incredible

Reasoning

The claimant produced a letter of appointment and acceptance, reported on duty on 12.02.2010, and CW2, the respondent's former chairperson, confirmed the employment. RW's evidence that she ceased working was found contradictory and incredible. The court therefore declared her a lawful employee and entered judgment accordingly.

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02

Whether the claimant was entitled to unpaid salary from 1.9.2011 to 24.02.2012

Holding

Yes, Kshs.73,214.30 awarded as submitted for the claimant

Reasoning

The respondent challenged exhibit 5(a) and exhibit 1(e) as unreliable and contended the claimant never earned Kshs.12,500 per month. The court found no ground to doubt the documents, which were corroborated by CW2, and computed the unpaid salary as submitted for the claimant.

p. 2
03

Whether the claimant was entitled to leave pay

Holding

Yes, for 2 years and 2 months, Kshs.26,458.00, per section 28 of the Employment Act, 2007

Reasoning

The claimant testified she never went on annual leave throughout her service, confirmed by CW2. Applying section 28 of the Employment Act, 2007, the court awarded leave pay commensurate with her actual service period rather than the three years claimed.

p. 2
04

Whether the claimant was entitled to overtime pay

Holding

Yes, Kshs.30,198.00 awarded

Reasoning

The claimant testified she reported at 6.00 am Monday to Saturday to sell water until 9.00 am before commencing her agreed duties, supported by exhibit 5(a) showing over 700 overtime hours. CW2 confirmed she was entitled to the overtime as claimed, and the court found the claim established.

p. 2

Legal principles established

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  • An employee whose salary is withheld is entitled to payment of the arrears
  • Leave entitlement accrues under section 28 of the Employment Act, 2007

Court orders

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  1. 1.a declaration that the claimant was a lawful employee of the respondent society
  2. 2.a declaration that it was wrongful, unlawful and unfair for the respondent to withhold the claimant's salary and allowances as the claimant was entitled to the payment
  3. 3.the respondent to pay the claimant Kshs.129,870.60 by 15.12.2013, in default interest at court rates to be payable from the date of the filing of the suit, 21.02.2013
  4. 4.the respondent to pay costs of the suit

Authorities

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Legislation

  • Employment Actsection 28
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment claims (Employment Act, 2007)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Hellen Njoki Kiboi v Harun Mwangi Muriithi & 2 others [2013] KEELRC 905 (KLR)", Case Analysis (2013). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/905/eng@2013-11-29

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