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ELRCPartially AllowedCause No. 172 of 2016· [2018] KEELRC 12 (KLR)

Bernard Khaemba Malaba v Board of Trustees Mount Kenya University [2018] KEELRC 12 (KLR)

Employment and Labour Relations Court of Kenya
31 July 2018
2,649 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 awarded a security guard underpayment and overtime dues but confirmed employers need not renew fixed term contracts that expire on their end date.

What this practically means

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Executive summary

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The claimant, employed by the respondent as a Security Guard from November 2010/2011 under successive fixed term contracts, claimed underpayment contrary to wage orders, unpaid overtime, unpaid public holiday work, salary deductions and compensation for unfair termination after his contract expired in January 2016. The respondent maintained that appropriate wages were paid, deductions were statutory, overtime during the 2013 elections was paid, and terminal dues of Kshs. 35,644.00 were settled. The court framed three issues: underpayment, overtime, and remedies. It held that fixed term employment is lawful and the employer was not obliged to renew the contract, so there was no unfair termination. Applying section 90 of the Employment Act, claims predating three years from the filing of the claim were statute barred, confining the court to the last contract beginning 26 September 2013. On that contract, although the gross wage was generous, the basic pay fell below the wage order minimum for a Security Guard, rendering the underpayment unlawful; Kshs. 80,237.00 was awarded. On overtime, the wage orders allowed a 60-hour week while the claimant worked 72 hours, entitling him to Kshs. 57,764.00 after crediting contractual overtime already paid. Claims for salary deductions failed as statutory deductions are not payable to the employee. The respondent's failure to produce work records under section 10(7) weighed in the claimant's favour. Judgment was entered for the claimant on underpayment and overtime only, with each party bearing its own costs.

Key legal issues

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01

Whether the claimant was underpaid contrary to wage orders

Holding

Yes; the basic wage fell below the wage order minimum for Security Guards for the last contract period

Reasoning

The court found that although the gross wage was generous, the set basic wage computation was below the published wage order minimum for a Security Guard. Payment below the statutory minimum was unlawful regardless of generosity of the gross package. The claimant was awarded Kshs. 80,237.00 for the underpayment covering the final contract.

p. 4
02

Whether the claimant worked overtime and was unpaid

Holding

Partially; the claimant worked 12 excess hours per week and was owed Kshs. 57,764.00 after credit for overtime already paid

Reasoning

Wage orders provide for a 60-hour week for Security Guards; the claimant worked 72 hours, a 12-hour weekly excess. Under the contract, overtime was provided at Kshs. 4,500 monthly, and the claimant received Kshs. 54,000 over the two-year term. The due overtime pay was computed less amounts already received, yielding Kshs. 57,764.00.

p. 4
03

Whether the employer's failure to renew the fixed term contract was unfair termination

Holding

No; the employment ended on its terms on expiry of the fixed term contract

Reasoning

Fixed term employment is lawful under section 10(3) of the Employment Act. On the agreed end date the contract comes to an end, and the employer has the option not to renew, as held in the authorities cited. The court noted the employer had substantially complied with statutory requirements including issuance of a certificate of service, and the employment relationship ended on its terms.

p. 4
04

Whether claims predating three years from filing are maintainable

Holding

No; such claims are statute barred under section 90 of the Employment Act

Reasoning

The memorandum of claim was filed on 23 May 2016, so only claims arising from May 2013 onwards, effectively the last contract dated 26 September 2013, were legitimate. Reliance was placed on Court of Appeal authority that claims outside three years are statute barred and that entertaining them would exceed the court's jurisdiction.

p. 3

Legal principles established

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  • A fixed term contract ends on its agreed end date and the employer is not obligated to renew it
  • Claims under a fixed term contract must be brought within the three-year period under section 90 of the Employment Act
  • Payment below the basic minimum wage set in wage orders is unlawful even where the gross wage exceeds the minimum
  • Where the employer does not submit work records to controvert claims, the employee's analysed dues are payable

Court orders

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  1. 1.Judgment for the claimant for payment of due unpaid wages in underpayment of Kshs. 80,237.00
  2. 2.Payment of overtime pay of Kshs. 57,764.00
  3. 3.Each party to bear own costs

Authorities

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Legislation

  • Employment Act, 2007section 10(3)
  • Employment Act, 2007section 10(7)
  • Employment Act, 2007section 90
  • Employment Act, 2007section 45(5)(c)
  • Employment Act, 2007section 51
  • Employment Act, 2007section 35
  • Wage Orders (Regulation of Wages)minimum wage provisions for Security Guards, 2013-2016

Cases cited (4)

  • Margaret A Achieng versus National Water Conservation & Pipeline Corporation
    [2014] eKLR
  • Bernard Wanjohi Muriuku versus Kirinyaga Water & Sanitation Co. Limited & Another
    [2012] eKLR
  • G4S Security Services (K) Limited v Joseph Kamau & 468 others
    [2018] eKLR
  • E.Torgbor versus Ladislaus Odongo Ojuok
    [2015] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007; section 90 of the Employment Act applied to limit claims

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Bernard Khaemba Malaba v Board of Trustees Mount Kenya University [2018] KEELRC 12 (KLR)", Case Analysis (2018). Cause No. 172 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/12/eng@2018-07-31

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