Evans Wafula Shikuku & 18 others v Jiangxi Zhongmei Engineering Construction Limited [2018] KEELRC 1580 (KLR)
The bottom line
#A Kenyan court dismissed 19 construction workers' claims for underpayment and unpaid overtime due to lack of evidence, but ordered their employer to compute unpaid annual leave.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimants were underpaid
The claim for underpayments was dismissed as there was no evidence of hourly payment or underpayment; the claim was based on hourly rates not provided for in the Building and Construction Industry Wages Order, which provides for daily rates only.
The prayer for underpayments was based on hourly rates, but the County Labour Officer's report showed the claimants were paid monthly rates. The claimants did not comment on those rates in submissions. None of the documents filed stated the rate of pay; the time sheets showed hours worked but not payment made. The report showed payments per day before the Return to Work Formula and per month after, with the Formula requiring payment per the Regulation of Wages (General) (Amendment) Order. The court therefore found no evidence of underpayment.
Whether the claimants were entitled to overtime
The overtime claim was dismissed because the claimants' own time sheets recorded normal hours and overtime at 1.5 and double rates, showing all overtime was recorded and paid for.
The claimants alleged they worked 12 hours daily from 7 a.m. to 7 p.m., giving 4 hours of unpaid overtime, plus 7 days without a rest day. However, the time sheets filed by the claimants themselves recorded both normal hours worked and overtime at 1.5 and double rates, corroborating the Labour Officer's note that all employees who worked extra hours were paid overtime, validated through records presented to the court. The court accordingly found no evidence of unpaid overtime.
Whether the claimants were entitled to annual leave
The claim for annual leave succeeded; the claimants were not given leave or paid in lieu, but the court could not assess the entitlement for want of dates of employment, last dates worked and last salaries, so the respondent was directed to work out the leave due.
The Labour Officer's report did not refer to leave, and among the records filed there was no reflection of leave taken or paid. The claimants stated in both the claim and submissions that they were not allowed leave and were not paid in lieu. The court found the claim proved but could not tabulate the entitlement because the claimants did not state dates of employment, last date worked and last salary. The respondent was therefore directed to compute leave due up to April 2015, the claim having been filed on 5th May 2015.
Legal principles established
#- A party alleging underpayment bears the evidential burden of establishing the rate of pay actually received, and a claim based on hourly rates fails where the applicable Wages Order provides only for daily/monthly rates.
- Where leave records are absent and no leave was given or paid in lieu, the employee is entitled to have leave worked out even if the court cannot itself tabulate the amount.
Court orders
#- 1.The prayers for underpayments and overtime are dismissed.
- 2.The respondent is directed to work out the leave due to each of the claimants up to the month of April 2015, being the last full month for tabulation as the claim was filed on 5th May 2015.
- Jurisdiction invoked
- Employment and labour relations jurisdiction of the Employment and Labour Relations Court; claim dated 27th April 2015 filed 5th May 2015 (specific provision not cited)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Evans Wafula Shikuku & 18 others v Jiangxi Zhongmei Engineering Construction Limited [2018] KEELRC 1580 (KLR)", Case Analysis (2018). Not stated in the judgment as reproduced. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1580/eng@2018-07-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.