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ELRCPartially AllowedCause No. 93 of 2010· [2014] KEELRC 1316 (KLR)

Peter Oenga Ongaga v Payless Car Hire & Tours Limited [2014] KEELRC 1316 (KLR)

Industrial Court of Kenya
16 July 2014
MMM. Mbaru
6,274 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan driver won overtime pay and full legal costs because his employer never gave him a written employment contract or kept proper records.

What this practically means

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Executive summary

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The claimant, employed by the respondent as a bus driver from May 2005 and deployed to Daystar University's Athi River Campus, sued for unpaid overtime of Kshs. 1,658,315.00, meal allowances of Kshs. 503,590.00, December 2008 salary of Kshs. 13,681.00 and service charge of Kshs. 20,520.00, alleging he was never issued a written contract of appointment and that overtime and allowances were paid only sporadically. The respondent admitted the employment but asserted that the claimant had a contract, was paid all dues for hours worked above 195 per month at 1½ times basic pay, was based at the University which provided free meals and housing, declined to collect his December 2008 pay, and absconded duty in January 2009. The court held that under sections 9, 10 and 74 of the Employment Act, the duty to issue and keep a written contract of service rests on the employer; the respondent's pleaded annexure was a contract with the University, not the claimant, so the court took the claimant's records as the only evidence. However, most mileage sheets lacked clarity on times, and only 148 overtime hours could be verified, awarded at 1½ times the basic pay of Kshs. 11,723.00, amounting to Kshs. 10,845.00. Meal allowances were declined as no contractual condition for food existed and the work station never changed. December 2008 salary/notice pay was declined because the claimant absconded without notice, and service charge was declined because NSSF and NHIF dues had been remitted. The respondent was ordered to pay the awarded overtime and the costs of the suit, attributable to its failure to issue a contract of employment.

Key legal issues

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01

Whether the claimant was entitled to unpaid overtime

Holding

Partly allowed: only 148 verifiable overtime hours were awarded at 1½ times the basic hourly rate, totalling Kshs. 10,845.00.

Reasoning

The employer failed to issue a written contract or keep records as required by sections 9, 10 and 74 of the Employment Act, leaving the court to rely on the claimant's records. However, most mileage sheets were unclear as to times, and the court could only confirm 148 hours of overtime. These were quantified at 1½ times the basic pay of Kshs. 11,723.00.

p. 10
02

Whether the claimant was entitled to meal allowances

Holding

Declined.

Reasoning

Sections 33 and 91(1)(f)(ii) of the Employment Act require any provision for food or an allowance in lieu to be a condition spelt out in the contract of employment. The claimant's work station never changed from Arthi River, and there was no evidence of a verbal or implied agreement for the provision of food.

p. 10
03

Whether the claimant was entitled to December 2008 salary and notice pay

Holding

Declined.

Reasoning

The claimant absconded duty in January 2009 without giving notice. Notice pay is for the benefit of both parties, and the claimant cannot claim in equity where he failed to meet the same obligation.

p. 10
04

Whether the claimant was entitled to service charge

Holding

Declined.

Reasoning

Service pay under section 35 of the Employment Act is only payable where the employer has failed to remit statutory dues to NSSF and NHIF. The claimant admitted these dues were paid on his behalf.

p. 11

Legal principles established

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  • An employer bears the duty to issue a written contract of service with particulars of employment within two months of commencement of employment.
  • Where an employer fails to produce employment records, the court may take the claimant's record as the only evidence.
  • Reasonable working hours are eight and any time worked beyond these basic hours should be compensated.

Court orders

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  1. 1.Judgment entered for the claimant against the respondent for overtime pay of Kshs. 10,845.00
  2. 2.Respondent to meet the costs of the suit

Authorities

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Legislation

  • Employment Actsection 9
  • Employment Actsection 10(1), 10(2)
  • Employment Actsection 74(1)
  • Employment Actsection 33
  • Employment Actsection 91(1)(f)(ii)
  • Employment Actsection 35
On appeal from
High Court
Civil Suit No. 527 of 2009
Jurisdiction invoked
Transfer of Civil Suit No. 527 of 2009 from the High Court to the Industrial Court, registered as Industrial Cause No. 93 of 2010 on 8th February 2010

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, "Peter Oenga Ongaga v Payless Car Hire & Tours Limited [2014] KEELRC 1316 (KLR)", Case Analysis (2014). Cause No. 93 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1316/eng@2014-07-16

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