Bernard Khaemba Malaba v Board of Trustees Mount Kenya University [2018] KEELRC 12 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the claimant was underpaid contrary to wage orders
Yes; the basic wage fell below the wage order minimum for Security Guards for the last contract period
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.
Whether the claimant worked overtime and was unpaid
Partially; the claimant worked 12 excess hours per week and was owed Kshs. 57,764.00 after credit for overtime already paid
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.
Whether the employer's failure to renew the fixed term contract was unfair termination
No; the employment ended on its terms on expiry of the fixed term contract
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.
Whether claims predating three years from filing are maintainable
No; such claims are statute barred under section 90 of the Employment Act
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.
Legal principles established
#- 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
#- 1.Judgment for the claimant for payment of due unpaid wages in underpayment of Kshs. 80,237.00
- 2.Payment of overtime pay of Kshs. 57,764.00
- 3.Each party to bear own costs
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Amos Munyao Mutua v Friends Diner Company Limited [2020] KEELRC 243 (KLR)[2020] KEELRC 243 (KLR)13 Nov 2020
Cite this brief
#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.