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ELRCDismissedCause No. 359 of 2014· [2019] KEELRC 100 (KLR)

Beatrice Kerubo Ombaye[Suing on behalf of Philip Nyachoti Ongubo] v United Millers Limited [2019] KEELRC 100 (KLR)

Employment and Labour Relations Court of Kenya
11 December 2019
MMM. Mbar
1,914 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 dismissed an employee's Sh840,000 claim because he never told his employer he was sick or brought a medical certificate after hospital treatment.

What this practically means

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Executive summary

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Philip Nyachoti Ogumbo, a former general worker of United Millers Limited, filed a memorandum of claim in August 2014 seeking notice pay, overtime pay, off-day pay, public holiday pay and compensation totalling over Ksh.840,000, alleging he worked seven days a week without rest days from November 2010 and that his employment was terminated without notice or reasons after he fell ill with brucellosis in February 2014. He died on 22nd January 2015 and his wife, Beatrice Kerubo Ombaye, was allowed by a ruling of 29th November 2018 to continue the suit as personal representative under letters ad litem, and testified on his behalf. The respondent, through its human resource officer Evans Omweri, maintained that the deceased was a casual employee engaged on irregular daily terms only when work was available, paid in accordance with the Wage Orders including overtime at 1.5 times and double rates, allowed an off day after six continuous days, and that his last working day was 24th January 2014. The court found the respondent's unchallenged wage records showed only about three days' attendance per week, with daily payments (Ksh.1,188, Ksh.1,080, Ksh.918) far exceeding the applicable minimum daily wage of Ksh.432.40, explicable only as compensation for all hours worked. Applying sections 30 and 34 of the Employment Act and precedent, the court held the deceased failed to notify the employer of his illness and produce a medical certificate, defeating claims for notice pay and compensation. All claims were dismissed with each party bearing own costs.

Key legal issues

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01

Compliance with sections 30 and 34 of the Employment Act on sick leave

Holding

The deceased failed to notify the employer as required and did not produce a medical certificate upon return; reporting to the labour officer did not cure this failure, so claims for notice pay and compensation failed

Reasoning

Sections 30 and 34 allow an employee to be away from work on account of sickness, but the absence is conditional: the employer must be informed immediately and a medical certificate from a recognised medical facility produced upon return. No certificate was attached to the memorandum of claim and no report was placed with the respondent upon admission to hospital. Reporting to the labour officer did not remove this legal requirement, even though the claimant had since died.

p. 3
02

Overtime, off-day and public holiday claims

Holding

The unchallenged work records showed sporadic attendance (about 3 days a week) with daily payments well above the applicable minimum daily wage of Ksh.432.40, consistent with compensation for extra hours; the claims lacked justification

Reasoning

The respondent produced wage schedules showing the claimant worked intermittently and was paid daily, with amounts such as Ksh.1,188, Ksh.1,080 and Ksh.918 against a minimum daily wage of Ksh.432.40 under the Regulation of Wages (General) (Amendment) Order, 2013. The records were not challenged. The court inferred the excess payments compensated all time worked, including extra hours, rest days and public holidays, so no additional overtime or off-duty dues arose.

p. 2

Legal principles established

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  • An employee absent from work due to illness must immediately inform the employer and upon return produce a medical certificate from a recognised medical facility under sections 30 and 34 of the Employment Act, 2007; failure to do so justifies treatment of the absence and defeats claims arising from it
  • Where unchallenged daily wage records show payments exceeding the applicable minimum wage, the excess is properly understood as compensation for extra hours worked, defeating claims for overtime and off-day pay

Court orders

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  1. 1.The claims made are found without merit and dismissed
  2. 2.Each party shall pay own costs

Authorities

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Legislation

  • Employment Act, 2007section 27
  • Employment Act, 2007section 30
  • Employment Act, 2007section 34 (including section 34(1))
  • Regulation of Wages (General) (Amendment) Order, 2013General Wage Orders (in operation from 1st May 2013)

Cases cited (3)

  • Dorothy Ndungu versus Machakos University
    [2016] eKLR
  • Ronalo Hamisi versus Orascom Construction Company
    Cause No.1477 of 2015
  • Anne Wairimu Kimani versus Kenya Agricultural Livestock Research Organisation (KALRO)
    [2017] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under Article 162(2) of the Constitution (not expressly cited in the judgment); suit commenced by Memorandum of Claim under the Employment Act, 2007

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, "Beatrice Kerubo Ombaye[Suing on behalf of Philip Nyachoti Ongubo] v United Millers Limited [2019] KEELRC 100 (KLR)", Case Analysis (2019). Cause No. 359 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/100/eng@2019-12-11

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