Douglas Wanjala Makokha & 35 others v Jiangxi Zhongmei Engineering Construction Company Limited [2018] KEELRC 1616 (KLR)

The pleadings and documents did not show how the sums claimed for underpayments were calculated or what rate was used. The claimants stated the rates at which they were paid but not the rates they alleged they were supposed to be paid. The County Labour Officer's report noted the underpayment arrears were calculated on an hourly rate not provided for in the Building and Construction Industry Wages Order, which provides for daily rates only. Without proof of the applicable rates and the shortfall, the claim could not succeed.

The claimants alleged they worked 12 hours daily for 7 days without a break. The court examined the time sheets and payslips filed in court and found that hours worked were clearly recorded, including normal overtime at 1.5 times hourly rates and overtime for public holidays and rest days at double rates, all reflected in the payslips. Overtime worked was therefore recorded and paid.

The respondent did not deny that it did not pay the claimants annual leave. Section 28 of the Employment Act entitles an employee who has worked a minimum of two months to annual leave; none of the claimants worked for less than two months. Each claimant is entitled to 1.75 days' leave per month worked, computed from date of recruitment to date of leaving employment or to December 2014 when suit was filed.