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ELRCDismissedCause No. 778 of 2012· [2018] KEELRC 2446 (KLR)

Charles Nguma Maina v Riley Services Limited [2018] KEELRC 2446 (KLR)

Employment and Labour Relations Court of Kenya
16 February 2018
MNMathews N. NdumaMOMaureen Onyango
685 words in judgment
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The bottom line

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A Kenyan driver who claimed nearly Kshs 6 million in overtime and service pay lost everything because he brought no records proving the hours worked.

What this practically means

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Executive summary

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The Employment and Labour Relations Court at Nairobi dismissed in its entirety a claim by Charles Nguma Maina, a former driver of Riley Services Limited, for terminal benefits totalling Kshs. 5,914,743, comprising service pay of Kshs. 51,571 and overtime claims for weekdays, Saturdays and public holidays accrued over seven years. The claimant was employed on 1 March 2001 and resigned voluntarily by letter dated 3 November 2008; his resignation letter sought no terminal benefits. The parties proceeded by written submissions without oral testimony. The court applied section 109 of the Evidence Act, holding that the burden of proof lay on the claimant. Although payslips made provision for overtime and showed NSSF and NHIF deductions, no evidence was adduced of the specific days worked overtime and left unpaid. The overtime claim was therefore rejected for want of substantiating evidence, the court following Rika J's decision in Fred Makori Ondari v The Management of the Ministry of Works Sports Club. The service pay claim was rejected both for want of proof and because the claimant was registered with the NSSF, with contributions made by the respondent, rendering it untenable under sections 35(5) and 35(6) of the Employment Act, 2007. The suit was dismissed with costs to the respondent. The judgment was signed by Nduma J in Kisumu on 5 February 2018 and delivered in Nairobi on 16 February 2018, with Onyango J also signing.

Key legal issues

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01

Whether the claimant proved entitlement to overtime pay for weekdays, Saturdays and public holidays over 7 years

Holding

Rejected for want of evidence; the claimant produced no evidence of the specific days worked overtime and left unpaid

Reasoning

The court applied section 109 of the Evidence Act, placing the burden of proof on the claimant. Payslips showed provision for overtime payment, but no evidence was adduced of the days actually worked overtime and left unpaid. Following Fred Makori Ondari, the court noted the absence of details of authorization, demands for payment, and the delay in claiming overtime until after resignation.

p. 2
02

Whether the claimant was entitled to service pay

Holding

Rejected; the claimant was an NSSF member whose employer made contributions, disqualifying service pay under section 35(5) and (6) of the Employment Act

Reasoning

The claimant's payslips showed NSSF registration and contributions by the respondent. Under section 35(5) read with 35(6) of the Employment Act, 2007, service pay is not payable to a member of a statutory social security scheme such as NSSF. The claim also failed for want of proof, and the resignation letter sought no terminal benefits.

p. 2

Legal principles established

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  • A claimant seeking overtime pay must adduce evidence of the specific days worked overtime and that it was unpaid; a bare claim without particulars fails
  • An employee registered with the NSSF, whose employer made contributions, is not entitled to service pay under section 35(5) and (6) of the Employment Act, 2007
  • The burden of proof as to any particular fact lies on the person who wishes the court to believe its existence

Court orders

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  1. 1.The suit is dismissed in its entirety
  2. 2.Claimant to pay costs of the suit

Authorities

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Legislation

  • Evidence Actsection 109
  • Employment Act, 2007section 35(5) and 35(6)

Cases cited (1)

  • Fred Makori Ondari v The Management of the Ministry of works Sports Club
    [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act (suit filed as a cause claiming terminal benefits under the Employment Act, 2007)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (10)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Charles Nguma Maina v Riley Services Limited [2018] KEELRC 2446 (KLR)", Case Analysis (2018). Cause No. 778 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2446/eng@2018-02-16

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