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ELRCDismissedCause No. 1981 of 2014· [2018] KEELRC 421 (KLR)

Joseph P. Rongoma Mwakesi v The Board Of Management Ngara Girls High School & another [2018] KEELRC 421 (KLR)

Employment and Labour Relations Court of Kenya
3 December 2018
DMD. K. Njagi MareteMOMaureen Onyango
1,148 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 dismissed a watchman's claims for acting allowance and overtime because he produced no evidence proving he was entitled to them.

What this practically means

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Executive summary

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The claimant, employed as a watchman by the 1st respondent from 10th September 1999 at Kshs.3,035 per month, claimed that from June 2010 he acted as Foreman/Headman without appointment or commensurate pay, reporting from around 4:30 hours to 2300 hours. He sought acting allowance for 51 months, overtime for working days, weekends and holidays, a disturbance (strenuous) allowance, expungement of a backdated compulsory leave letter dated 1st October 2014, and a promotion letter for the period worked as Foreman/Headman. The respondents denied the claim, asserting in the alternative that the claimant was redeployed as a groundsman after the school acquired private security services per Ministry of Education guidelines, and that his grievances were addressed and salary raised. The parties agreed to disposal by written submissions. The court framed two issues: entitlement to the relief sought, and costs. Holding that the claimant had proffered but not substantiated his claim, Marete J accepted the respondent's submissions that the claim was not proved on a balance of probability, that no disturbance allowance is known in labour relations, and that overtime under the General Wages Order must be proved with data. The court held that overtime must be negotiated and contracted between employer and employee, found the disturbance allowance claim superficial and unsupported in law, dismissed the entire claim, and ordered each party to bear their own costs. Judgment dated and signed 29th November 2018, delivered 3rd December 2018.

Key legal issues

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01

Entitlement to acting allowance and overtime

Holding

Claim dismissed for want of substantiation; employee must prove contractual basis and data for overtime

Reasoning

The court accepted the respondent's submission that the claimant could not prove his case on a balance of probability. While overtime is provided for in law, it must be negotiated and contracted between employer and employee, and the claimant tendered no supporting data on its initiation or contractual basis. The claim was therefore found unsustainable and the whole suit dismissed.

p. 3
02

Disturbance (strenuous) allowance

Holding

Claim superficial and unsupported in law

Reasoning

The respondent submitted there is no allowance known as disturbance allowance in labour relations and the claimant bore the burden of proving its existence. The court found the claim of working from 4:30 hours to 2300 hours daily implausible and unsupported in law, and rejected it.

p. 3

Legal principles established

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  • Overtime must be negotiated and contracted between employer and employee and cannot be imposed unilaterally by an employee

Court orders

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  1. 1.The claim is dismissed with orders that each party bears their own costs of the same

Authorities

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Legislation

  • Code of Regulationsrevised 2006
  • General Wages Orderovertime provisions
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment and Labour Relations Court Act); Statement of Claim under the court's cause procedure

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, "Joseph P. Rongoma Mwakesi v The Board Of Management Ngara Girls High School & another [2018] KEELRC 421 (KLR)", Case Analysis (2018). Cause No. 1981 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/421/eng@2018-12-03

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