Samuel Kipngetich Korir & 6 others v Jiangixi Zhognmei Engineering Construction Company Limited [2018] KEELRC 2019 (KLR)
The bottom line
#Seven road workers won unpaid annual leave pay from their employer, but lost overtime and underpayment claims because they could not prove them in a Kenyan employment court.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimants were entitled to underpayment of wages
Dismissed - the payroll extract showed all claimants were tipper drivers paid a monthly basic salary of Kshs.19,474 as at September 2014, following adjustment per the Building and Construction Industry Wages Order
The court noted that in September 2014 the company adjusted wages for all workers including the claimants in accordance with the Building and Construction Industry Wages Order Legal Notice No. 20 of 1st February 2013. A payroll extract attached to the Labour Officer's report confirmed payment at the adjusted monthly basic salary together with house allowance, normal overtime, holidays and rest days. The claimants' submissions alleged hourly rates of 50/-, 60/- and 65/- against a prescribed 175/-, but produced no proof displacing the report's findings, which they did not deny.
Whether the claimants were entitled to lost hours/overtime
Dismissed for want of proof; the Labour Officer found overtime hours were recorded in job cards and paid
The County Labour Officer's investigation found that the claimants worked hours over and above normal daily working hours, that these were recorded in the job cards and paid as overtime, and that the issue of lost hours therefore did not arise. The claimants did not deny these findings in their written submissions, and the court adopted the report as the factual position. The claimants' assertion of working 12 hours daily from 7 a.m. to 7 p.m. was not substantiated against the payroll and job card records.
Whether the claimants were entitled to annual leave or pay in lieu
Allowed - annual leave is a right of all employees; awarded pro-rata for each claimant's months of service, less amounts already paid where applicable
The court observed that the Labour Officer's report made no mention of payment of annual leave for the claimants apart from Korir and Barusei, who had received accrued leave in their terminal dues. Holding that annual leave is a right of all employees whether still in employment or not, the court computed pro-rata leave pay for each claimant's period of service, deducting leave sums already paid (e.g. Kshs.19,705 for Korir and Kshs.16,852 for Barusei), and awarded the balances.
Weight to be attached to the County Labour Officer's report
Adopted as representing the factual position because the claimants made no attempt to address or deny its findings in their submissions
The court had referred the claim to the County Labour Office, Trans Nzoia County, to investigate and report. The report found that Korir, Chumo and Barusei had been paid terminal dues in full and final settlement, and that the remaining four claimants were still in employment. The claimants' written submissions made no attempt to address these findings and did not deny them. In the absence of rebuttal, the court confirmed the findings of the County Labour Officer.
Legal principles established
#- Annual leave is a statutory right of all employees, who are entitled to annual leave or pay in lieu thereof whether still in employment or not
- An uncontested report of the County Labour Officer filed to assist the court may be adopted as representing the factual position where the claimants make no attempt to address or deny its findings
- A party who asserts a claim that is not proved will have that claim dismissed even in an undefended suit
Court orders
#- 1.Award of Kshs.3,502.70/= to Samuel Kipngetich Korir being the balance of unpaid annual leave for 15 months
- 2.Award of Kshs.35,985.40/= to Guleth Bule Hassan for annual leave for 29 months; prayers for underpayment and lost hours/overtime dismissed
- 3.Award of Kshs.35,985.40/= to Victor Githiomi for annual leave for 29 months; claims for underpayments, lost hours and overtime dismissed for want of proof
- 4.Award of Kshs.57,073.40/= to Edwin Kiprotich Chumo comprising annual leave of Kshs.22,335.75 for 18 months plus Kshs.34,737.60 house allowance arrears found by the County Labour Officer
- 5.Award of Kshs.6,724.50/= to David Barusei being annual leave for 19 months at Kshs.23,576.50 less Kshs.16,852 already paid; underpayment, lost hours and overtime claims dismissed
- 6.Award of Kshs.21,865/= to Eliud Gulenywa Mwanza for annual leave for 22 months; claims for underpayments, lost hours and overtime dismissed
- 7.Award of Kshs.16,131.30/= to Joshua Barasa for annual leave for 13 months; claim for underpayments, lost hours and overtime dismissed for want of proof
- 8.The respondent shall pay the claimants' costs on the lower scale on the basis that it is an undefended claim
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (employment and labour relations claims)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samuel Kipngetich Korir & 6 others v Jiangixi Zhognmei Engineering Construction Company Limited [2018] KEELRC 2019 (KLR)", Case Analysis (2018). Cause No. 145 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2019/eng@2018-05-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.