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ELRCPartially AllowedCause No 112 of 2015· [2018] KEELRC 1615 (KLR)

Leonard Kilwake Chebusire & 23 others v Jiangxi Zhongmei Engineering Construction Company Limited [2018] KEELRC 1615 (KLR)

Employment and Labour Relations Court
5 July 2018
2,978 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenyan construction workers won only unpaid annual leave after the court found their payslips proved underpayment and overtime claims wrong.

What this practically means

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Executive summary

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Twenty-four current and former employees of a construction company engaged to rehabilitate the Webuye-Kitale Road sued for underpayments, lost hours, house allowance, NSSF/NHIF/PAYE refunds and annual leave. The respondent filed no defence and did not attend the hearing. The court, citing the sketchy information and number of employees involved, referred the claim to the County Labour Officer Kitale for investigation and report. The report recorded that several claimants had already been paid full terminal dues, some had deserted or instituted separate suits, and that underpayment demands based on hourly rates were unsupported since the Building and Construction Industry Wages Order provides only daily rates. In submissions, claimants' counsel abandoned the house allowance, NSSF, NHIF and PAYE heads and relied on a Return to Work Formula of 13th September 2014. The court framed three issues: underpayment, overtime/lost hours, and annual leave. On the uncontested Labour Officer findings, current pay was not below the statutory minimum, so the underpayment claim failed. Time sheets and payslips showed overtime was recorded and paid, so the lost hours claim failed. The respondent did not deny failure to pay annual leave; under Section 28 of the Employment Act each claimant was entitled to 1.75 days' leave per month worked, computed from recruitment to exit or filing suit. Judgment was entered for annual leave only, limited to claimants still employed when the Labour Officer reported, as the twelve who left had been paid full terminal dues. Costs were awarded to the claimants on the lower scale.

Key legal issues

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01

Underpayments

Holding

Claim for underpayments dismissed for want of proof.

Reasoning

The court considered the County Labour Officer's report showing each claimant's trade, rate before and current rate, and found the recorded 'current pay' was not below the statutory minimum rate of pay for each job. The Return to Work Formula of 13th September 2014, under which the respondent undertook to pay statutory minimum rates, appeared to have been complied with. The claimants' written submissions did not contest these findings.

p. 14
02

Overtime/lost hours

Holding

Claim for overtime/lost hours dismissed as all overtime worked was recorded and paid.

Reasoning

The court examined the time sheets and payslips filed in court. Hours worked were clearly recorded, including normal overtime paid at 1.5 times hourly rates and overtime on public holidays and rest days paid at double rates, all reflected in the payslips. The allegation that claimants worked 12 hours daily for 7 days without a break was therefore not borne out by the documents.

p. 15
03

Annual leave

Holding

Claim for annual leave succeeded; respondent directed to compute and pay leave due at 1.75 days per month worked.

Reasoning

The respondent did not deny that it did not pay the claimants annual leave. Section 28 of the Employment Act entitles any employee who has worked a minimum of two months to annual leave, and none of the claimants worked for less than two months. Each claimant is entitled to 1.75 days per month worked, computed from date of recruitment to date of leaving or filing suit.

p. 15

Legal principles established

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  • An employee who has worked for a minimum of two months is entitled to annual leave under Section 28 of the Employment Act at the rate of 1.75 days for each month worked.
  • A claimant who asserts underpayment below statutory minimum wages bears the burden of proving that the wages paid fell below the statutory minimum rate for the trade in which they were engaged.
  • NSSF and NHIF are statutory deductions which employees cannot recover as refunds from the employer.

Court orders

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  1. 1.Judgment entered for the claimants against the respondent in respect of annual leave only
  2. 2.The respondent directed to compute and pay the claimants all leave due from date of recruitment to date of either leaving employment or to date of filing suit being December 2014, at the rate of 1.75 days for each month worked
  3. 3.The annual leave award to apply only to those employees who had not left the respondent's employment at the time of preparation of the County Labour Officer's report
  4. 4.Respondent to pay costs of the suit on the lower scale

Authorities

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Legislation

  • Regulation of Wages (General) (Amendment) Order, 2013Not specified
  • Building and Construction Industry Wages OrderNot specified
  • Employment ActSection 27; Section 28

Cases cited (3)

  • Evans Katiezo Aligulah -v- Eldomatt Wholesale and Supermarket Limited
    [2016] eKLR
  • John Rioba Maugo -v- Riley Falcon Security Services Limited
    [2016] eKLR
  • Kenya Guards and Allied Workers Union -v- Lavington Security Limited
    [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under Article 162(2) of the Constitution over employment and labour relations disputes (not expressly cited in the judgment; claim filed under the Employment Act)

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, "Leonard Kilwake Chebusire & 23 others v Jiangxi Zhongmei Engineering Construction Company Limited [2018] KEELRC 1615 (KLR)", Case Analysis (2018). Cause No 112 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1615/eng@2018-07-05

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