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ELRCPartially AllowedCivil Appeal Number 23 of 2015 (formerly Civil Appeal Number 29 of 2008, High Court Mombasa; originating in Mombasa R.M.C.C. Number 3717 of 2006)· [2016] KEELRC 1607 (KLR)

Rogoli Ole Manadiegi v General Cargo Services Limited [2016] KEELRC 1607 (KLR)

Employment and Labour Relations Court
4 March 2016
JRJames Rika
1,366 words in judgment
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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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This was a first appeal to the Employment and Labour Relations Court at Mombasa, transferred from the High Court on jurisdictional grounds in 2015, arising from a claim by a former security guard against his employer for notice pay, annual leave pay, gratuity and overtime, originally dismissed by the Trial Court except for notice pay. The appeal was determined on the record of the trial court with written submissions, the Respondent adducing no evidence at trial and filing no submissions on appeal. The ELRC affirmed the Employer's custodianship of employment records but held that the burden of establishing excess hours of work rests on the Employee; the Appellant's failure to particularise overtime, and his own concession of absences from work, defeated both the overtime and annual leave claims. The claim for three months' notice pay was also rejected as the Appellant had received one month's notice pay through the Labour Office. However, the appeal succeeded on gratuity, which the Trial Court had wrongly equated with severance pay on redundancy: the Court awarded 18 days' salary per completed year of service (Kshs. 33,230) under regulation 17 of the Regulation of Wages [Protective Security Services] Order 1998. It also awarded arrears of salary of Kshs. 38,400 for 2003 to 2005, holding that an employee's salary cannot be reduced without consultation and concurrence. Total award: Kshs. 71,630 with interest at 14% per annum, with each party bearing their own costs in the appeal and the trial court.

Key legal issues

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01

Overtime pay

Holding

Claim not established; the Employee must prove excess hours even where the Employer produces no records

Reasoning

The Court accepted that the Employer is custodian of employment records, but held the Employee must still establish on the balance of probability when excess hours, public holiday or rest day work occurred, and how the global figure claimed was computed under the applicable Wage Order. The Appellant's own evidence of absences undermined the claim.

p. 2
02

Annual leave pay

Holding

Claim failed; leave days taken were not deducted and the Appellant gave no forthright evidence of the time away

Reasoning

The Appellant conceded being away for one or two weeks at times while salary continued, and claimed a full 8 years' leave without deduction. The Court held leave need not be taken at once, so days away could have formed part of the entitlement, and the Appellant needed to explain the time away.

p. 2
03

Gratuity

Holding

Allowed at 18 days' salary for every completed year of service under regulation number 17, computed at Kshs. 33,230

Reasoning

Gratuity was pursued on clear facts based on a clear wage regulation, unlike overtime and leave. The Trial Court erred in equating Wage Order gratuity with severance pay on redundancy; the Appellant merited the statutory gratuity.

p. 3
04

Underpayment/arrears of salary 2003-2005

Holding

Allowed at Kshs. 38,400

Reasoning

Though not pleaded initially, the evidence was consistent and unchallenged, and the Court on appeal is entitled to evaluate the evidence. The Respondent reduced the monthly rate from Kshs. 6,000 to Kshs. 4,800 with no explanation, contrary to the principle that salary cannot be adjusted to an employee's disfavour without consultation and concurrence.

p. 3
05

Notice pay

Holding

Trial Court correctly found entitlement to only 1 month's notice pay, already received through the Labour Office

Reasoning

Three months' notice was not justified by the contract or the law governing the employment relationship; the Appellant received Kshs. 11,280 via the Labour Office, so no additional notice pay was due.

p. 3

Legal principles established

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  • The burden of establishing hours or days served in excess of the legal maximum rests with the Employee, notwithstanding the Employer's duty to keep employment records
  • An employee's salary should not be reduced in his disfavour without consultation and his concurrence
  • Gratuity under the Wage Order is not the same as severance pay on redundancy

Court orders

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  1. 1.The Respondent shall pay the Appellant gratuity and arrears of salary totalling Kshs. 71,630
  2. 2.Interest at 14% p.a. on the principal sum granted, from the date of judgment until payment in full
  3. 3.Each party to meet their own costs in the Appeal and the Trial Court

Authorities

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Legislation

  • Regulation of Wages [Protective Security Services] Order 1998Regulation 6
  • Regulation of Wages [Protective Security Services] Order 1998Regulation 7 (Order 7)
  • Regulation of Wages [Protective Security Services] Order 1998Regulation 17
  • Employment Actgeneral reference

Cases cited (1)

  • Meshack Kiio Ikulume v. Prime Fuels Kenya Limited
    [2013] e-KLR
On appeal from
Chief Magistrate's Court, Mombasa (transferred from the High Court, Mombasa)
Mombasa R.M.C.C. Number 3717 of 2006 / Civil Appeal Number 29 of 2008
Jurisdiction invoked
Appeal transferred to the Employment and Labour Relations Court by the High Court on jurisdictional grounds on 20th July 2015

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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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, "Rogoli Ole Manadiegi v General Cargo Services Limited [2016] KEELRC 1607 (KLR)", Case Analysis (2016). Civil Appeal Number 23 of 2015 (formerly Civil Appeal Number 29 of 2008, High Court Mombasa; originating in Mombasa R.M.C.C. Number 3717 of 2006). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1607/eng@2016-03-04

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