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ELRCPartially AllowedNot stated in the judgment as provided· [2014] KEELRC 1350 (KLR)

Kadima Linet Kasandi v Nakuru Industries Limited [2014] KEELRC 1350 (KLR)

Employment and Labour Relations Court
17 October 2014
746 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The claimant, administrix of the estate of Henry Akongo Odero (deceased), sued the respondent claiming underpayments of Kshs. 221,445.00, overtime of Kshs. 2,004,680.00, public holiday pay of Kshs. 40,311.55 and gratuity arrears of Kshs. 32,690.80, less Kshs. 69,401.30 owed to the respondent, for a net claim of Kshs. 2,229,726.90. The deceased had been employed on 17.02.2000 as Chief Fire and Safety Officer at a salary rising from Kshs. 6,500.00 to Kshs. 10,000.00. The respondent, through its technical director Depak Premchand Shah, asked for dismissal of the claim as malicious and baseless. The court, considering pleadings, evidence and submissions, found that the deceased had complained of underpayment by letter of 3.06.2008, that peers in similar or lower positions earned Kshs. 18,000.00 to Kshs. 22,000.00, and that the respondent's own witness confirmed he was a senior officer above Artisan I grade; underpayment of Kshs. 221,445.00 was therefore established. The overtime claim failed because the appointment letter required vigilance throughout 24 hours, the deceased had condoned long hours without complaint, no overtime was agreed and its measure was unproved. The public holiday claim, though established for specific dates in 2001, was held time barred under section 90 of the Employment Act, 2007. Gratuity arrears of Kshs. 32,690.80 were awarded. After set-off of the admitted Kshs. 69,401.30, judgment was entered for Kshs. 184,734.50 with interest from filing, payable by 1.12.2014, plus costs of the suit.

Key legal issues

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01

Underpayment

Holding

The deceased was underpaid and the claimant is entitled to Kshs. 221,445.00 as prayed

Reasoning

The deceased had complained in writing on 3.06.2008 that for over 9 years he earned Kshs. 8,000.00 while staff in similar or lower positions earned Kshs. 18,000.00 to Kshs. 22,000.00. The respondent responded only by raising his salary to Kshs. 10,000.00. The respondent's own witness confirmed the deceased was a senior officer higher than the grade of Artisan I on which the claimant pegged the underpayment, so the claim succeeded in full.

p. 2
02

Overtime

Holding

The claim for overtime of Kshs. 2,004,680.00 fails

Reasoning

The appointment letter required the deceased to be vigilant throughout 24 hours and he accepted to work long hours without complaint, thereby condoning them. The parties never agreed on overtime or the periods for overtime, and the measure of the overtime claimed was not established. The prayer accordingly failed.

p. 2
03

Public holiday pay

Holding

The claim for Kshs. 40,311.55 for work on public holidays fails as time barred

Reasoning

Although the claimant established that the deceased reported on duty on certain public holidays such as 1.06.2001, 19.10.2001 and 12.12.2001 without pay, the cause of action in respect of those holidays was caught by the limitation period under section 90 of the Employment Act, 2007, given the claim was filed in 2013.

p. 2
04

Gratuity payment arrears

Holding

The claimant is entitled to Kshs. 32,690.80 as prayed

Reasoning

The claim was justified on the basis that the gratuity ought to have been computed on a salary of Kshs. 16,109.00 rather than Kshs. 10,100.00. Since the court had already found that the deceased was indeed underpaid, the claimant was entitled to the arrears as prayed. The admitted debt of Kshs. 69,401.30 owed to the respondent was set off in the final orders.

p. 2

Legal principles established

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  • An employee who agrees to remain vigilant throughout 24 hours and condones long working hours without complaint cannot later claim unagreed overtime
  • Claims for payment for work on public holidays are subject to the limitation period in section 90 of the Employment Act, 2007

Court orders

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  1. 1.The respondent to pay the claimant Kshs. 184,734.50 plus interest at court rates from the date of filing the suit to the date of judgment
  2. 2.The respondent to pay the money in (1) by 1.12.2014, failing which interest at court rates shall be payable thereon from the date of the judgment till full payment
  3. 3.The respondent to pay costs of the suit

Authorities

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Legislation

  • Employment ActSection 90
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment claim)

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, "Kadima Linet Kasandi v Nakuru Industries Limited [2014] KEELRC 1350 (KLR)", Case Analysis (2014). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1350/eng@2014-10-17

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