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ELRCOtherCause (Memorandum of Claim filed 18 November 2014) - number not stated in judgment· [2015] KEELRC 1287 (KLR)

Samuel Otiende Lukoko v Shiners Girls High School [2015] KEELRC 1287 (KLR)

Employment and Labour Relations Court
20 March 2015
RSRadido Stephen
952 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenyan workers can claim back-pay for underpayment below minimum wage within 12 months after the underpayment ends, not each pay period separately.

What this practically means

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Executive summary

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The claimant filed a memorandum of claim on 18 November 2014 against Shiners Girls High School alleging unfair termination, underpayment of wages and non-payment of overtime. The respondent filed a preliminary objection contending that the cause was vexatious, an abuse of process and offended section 90 of the Employment Act, 2007, limiting its submissions to underpayments allegedly accrued prior to 2011, which it said fell outside the three-year limitation period. It relied on five eKLR authorities concerning limitation in unfair termination claims and argued that each underpayment constituted a separate cause of action and that the claim was not a continuing injury. The claimant, through Ms. Kibiru, submitted that employment was continuous, service was terminated on 22 July 2014, and the cause was filed within time. The court framed a narrow issue: whether underpayment below the prescribed minimum wage is a continuing injury for purposes of section 90. Adopting its earlier decision in Stephen Kamau Karanja v Family Bank Ltd, the judge held that payment below the prescribed minimum rates is a continuing injury, and that although each underpayment is a distinct cause of action, where the underpayments continue the claims are statute-barred only twelve months after cessation of the injury. The underpayment claim, grounded in section 48 of the Labour Institutions Act, was held to be independent of the unfair termination claim, rendering the respondent's authorities inapposite. Noting that payment below the minimum wage is also a criminal offence, the court overruled the preliminary objection and ordered the cause to proceed to hearing on the merits. No costs order was made. Judgment delivered at Nakuru on 20 March 2015 by Radido Stephen, Judge.

Key legal issues

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01

Whether underpayment below the minimum wage is a continuing injury under section 90 of the Employment Act

Holding

Yes; each underpayment is a distinct cause of action but where the underpayments continue, all of them remain actionable until 12 months after cessation of the injury

Reasoning

The court adopted its earlier reasoning in Stephen Kamau Karanja v Family Bank Ltd, applying Black's Law Dictionary's definition of continuing injury and adding underpayment of wages as an example. Because the claimant's employment was continuous and terminated on 22 July 2014, with underpayments claimed up to 30 June 2014, the cause filed on 18 November 2014 fell within the 12-month period. The authorities cited by the respondent addressed unfair termination, a distinct cause of action.

p. 2
02

Whether the underpayment claim is independent of the unfair termination claim

Holding

Yes; the underpayment claim derives from section 48 of the Labour Institutions Act and exists independently

Reasoning

The court distinguished the statutory minimum wage entitlement, embedded in the contract by section 48 of the Labour Institutions Act, from the claim for unfair termination. The respondent's authorities on limitation in unfair termination cases were therefore inapposite to the narrow question of continuing underpayment.

p. 2

Legal principles established

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  • Payment of wages below the prescribed minimum rates constitutes a continuing injury for purposes of limitation under section 90 of the Employment Act, 2007
  • Where underpayments continue, the cause of action in respect of all underpayments is statute-barred only 12 months after cessation of the injury
  • A claim for underpayment below the statutory minimum wage is a cause of action independent of and can survive a claim for unfair termination

Court orders

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  1. 1.Preliminary objection overruled
  2. 2.The Cause to proceed to hearing on the merits

Authorities

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Legislation

  • Employment Actsection 90
  • Labour Institutions Actsection 48(1) and 48(2)

Cases cited (6)

  • Peter Musembi Nzioka v Barclays Bank Kenya Ltd
    (2013) eKLR
  • Josephat Ndirangu v Henkel Chemicals (EA) Ltd
    (2013) eKLR
  • Mary Kasiwa v Scorpio Enterprises Ltd
    (2013) eKLR
  • Fred Mudave Gogo v G4S Security (K) Ltd
    (2014) eKLR
  • Nicodemus Marani v Timsales Ltd
    (2014) eKLR
  • Stephen Kamau Karanja v Family Bank Ltd
    (2014) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and Labour Institutions Act (statutory employment dispute; specific enabling provision not cited in the judgment)

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, "Samuel Otiende Lukoko v Shiners Girls High School [2015] KEELRC 1287 (KLR)", Case Analysis (2015). Cause (Memorandum of Claim filed 18 November 2014) - number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1287/eng@2015-03-20

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