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ELRCPartially Allowed· [2018] KEELRC 2449 (KLR)

Benard Orinyo Alaktari v Omar Cleaning Services Limited [2018] KEELRC 2449 (KLR)

Employment and Labour Relations Court
9 February 2018
JRJames Rika
875 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court rejected overtime and leave pay claims because the worker could not prove the hours worked or that overtime was authorized.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a Cleaner from April 2012, sued after his contract ended on 21st May 2015, claiming underpayment, house allowance, public holidays pay, overtime, annual leave allowances, compensation for unfair termination, and punitive damages totalling Kshs. 514,196. The Respondent filed a general denial but its Director's witness statement explained the Claimant resigned on medical grounds by letter dated 22nd May 2015 after refusing transfer to Lamu. On 10th February 2017 the parties recorded a partial consent under which the Respondent paid the Claimant Kshs. 107,831 as salary and house allowance arrears, and the Claimant abandoned the prayers for public holidays, compensation for unfair termination and punitive damages. Only overtime and annual leave remained for determination on the record, the parties having filed submissions. The Court found the Claimant did not work excess hours, and in any event had not shown the excess hours were authorized by his employer; his account of his hours was uncertain, cleaning in a learning institution cannot be nonstop, and he produced no wage instrument on the mode of calculating overtime. Adopting the position in Scholar Katuve Mulei v. Maria Zermmlin, the Court held a claimant must prove he worked overtime and that it was approved and necessary. The overtime claim of Kshs. 131,040 was rejected. The annual leave claim was also declined because the school recess months of April, August and December gave the Claimant opportunity to take his leave. The consent was adopted as full and final judgment, with each party bearing its own costs.

Key legal issues

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01

Entitlement to overtime pay

Holding

The prayer for overtime pay was rejected as the Claimant neither worked excess hours nor proved employer authorization or a mode of calculation backed by a wage instrument

Reasoning

The Court found the Claimant's account of his hours uncertain, noted cleaning cannot be nonstop especially in a learning institution, and observed the Claimant raised overtime only after resigning. Relying on Scholar Katuve Mulei v. Maria Zermmlin, it held a claimant must demonstrate he worked overtime and that the overtime was approved and necessary. The blanket prayer for the entire service period without supporting wage instruments failed.

p. 2
02

Entitlement to annual leave pay

Holding

The annual leave claim was declined because the Claimant had recess periods in April, August and December when he did not clean and could have taken his leave

Reasoning

The Claimant was assigned cleaning duties at Aga Khan School, which closed for recess in April, August and December, during which he did not clean. The Court considered those periods sufficient opportunity to utilize his annual leave entitlement, and therefore declined the annual leave pay claim.

p. 2

Legal principles established

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  • A claimant must show he worked overtime, and that such overtime work was approved and necessary, to be granted overtime pay

Court orders

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  1. 1.Paragraphs 1 and 2 of the Consent filed on 8th February 2017 is adopted as the Full and Final Judgment of the Court
  2. 2.Parties shall meet their costs of the Claim

Authorities

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Cases cited (1)

  • Scholar Katuve Mulei v. Maria Zermmlin
    [2016] e-KLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment claims (claim for overtime, leave and related dues); no specific provision cited in judgment

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, "Benard Orinyo Alaktari v Omar Cleaning Services Limited [2018] KEELRC 2449 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2449/eng@2018-02-09

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