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ELRCPartially AllowedELRC Cause No. 1569 of 2010· [2019] KEELRC 1065 (KLR)

Kenya Union of Commercial Food and Allied Workers Union v Spurs Security Services Limited [2019] KEELRC 1065 (KLR)

Employment and Labour Relations Court
9 July 2019
HWHellen S. Wasilwa
1,826 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Claimant union sued on behalf of the Respondent's security guards in December 2010, alleging underpayment below the minimum wage, non-issuance of appointment letters and pay slips, and non-payment for public holidays and overtime, seeking salary arrears, issuance of employment documents and interest. An ex parte award by Justice Rika in 2012 was set aside by consent in 2015, allowing the Respondent to file a Response, which denied the grievants' employment and alleged ghost workers. The Respondent, however, never appeared at the hearing, adduced no evidence and filed no submissions. Raphael Kaka testified for the grievants, several of whom had earlier withdrawn their claims. The court found the grievants were paid below the minimum wage and unrebutted evidence established underpayment of KShs. 4,151.45 per month, awarding KShs. 29,060.15 for each grievant for the seven months from May to December 2010. Claims for public holidays, overtime, unpaid leave and uniform deductions were not particularised, and witness statements extending claims to 2018 departed from the pleadings without leave to amend, so relief was confined to the pleaded period. The Respondent was ordered to pay the award with costs and interest at Court rates from the date of filing. The judgment highlights the consequences of non-attendance and the strict adherence to pleadings in quantifying employment claims.

Key legal issues

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01

Underpayment below the minimum wage

Holding

The grievants were underpaid; each is awarded KShs. 29,060.15 for the seven months May to December 2010

Reasoning

The Respondent failed to appear and adduce evidence or file submissions, so the Claimant's evidence stood unrebutted. The grievants' wages were below the minimum wage set under Legal Notice 98, giving an underpayment of 4,151.45 per month for seven months, totalling 29,060.15 per grievant.

p. 3
02

Claims beyond the pleaded period

Holding

Witness statements claiming up to 2018 departed from the pleadings and are disallowed

Reasoning

The witness statements extended claims to 2018 and beyond the prayer in the main claim. As no leave to amend was sought, the court confined recovery to the pleaded period from May to December 2010 when the claim was filed.

p. 3
03

Unparticularised claims for public holidays and overtime

Holding

Disallowed for lack of particularisation

Reasoning

Although the grievants contended they worked on public holidays and overtime without pay, the court found these claims were not particularised and therefore could not be awarded.

p. 3

Legal principles established

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  • A party is held to its pleadings as filed and cannot advance claims beyond them without leave to amend

Court orders

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  1. 1.Payment to each grievant of underpayment of salary of KShs. 29,060.15 for the period May to December 2010
  2. 2.Respondent to pay costs of the suit plus interest at Court rates from the time of filing the Claim

Authorities

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Legislation

  • Employment ActSection 74
  • Employment Act 2007Section 17
  • Regulation of Wages (Protective Security Services) Order 2003
  • Constitution of KenyaArticle 41
  • Legal Notice 98

Cases cited (2)

  • Kathra Hussein Noor vs. Another vs. Kaderdina Hajee Essak Limited
    [2016] eKLR
  • John Rioba Maugo vs. Riley Falcon Security Services Limited
    [2016] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over the trade dispute (Employment Act, Regulation of Wages (Protective Security Services) Order 2003 and Article 41 of the Constitution invoked)

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, "Kenya Union of Commercial Food and Allied Workers Union v Spurs Security Services Limited [2019] KEELRC 1065 (KLR)", Case Analysis (2019). ELRC Cause No. 1569 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1065/eng@2019-07-09

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