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ELRCOtherCause No. 409 of 2017· [2019] KEELRC 1102 (KLR)

Joshua Ondere Alibi & 7 others v Rosoga Investment Limited [2019] KEELRC 1102 (KLR)

Employment and Labour Relations Court of Kenya
11 July 2019
MMM. Mbaru
2,211 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court couldn't rule on eight workers' claims because the employer failed to keep employment records, so an independent officer must now compute the dues owed.

What this practically means

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Executive summary

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Eight claimants sued Rosoga Investment Limited claiming they were verbally employed as machine operators and general workers between 2015 and 2017 and that their employment was terminated in April/May 2017 without notice, reasons or payment of terminal dues. They claimed notice pay, underpayments, overtime, leave, public holiday pay, unpaid wages for May 2017, compensation and refund of Sacco deductions made to ROCOM Sacco and ROWA Welfare without their consent, with specific figures pleaded for each claimant. The respondent denied the claims, asserting the claimants were causal employees paid per work done, laid off in 2017 when the sawmill ran out of logs pending plantation allocation, and to be recalled; the 7th claimant in fact returned to work in October 2017. The 1st claimant testified for all claimants. At submissions, the claimants filed payment statements not previously availed to the respondent. The court held that under section 10(6) and (7) of the Employment Act the duty to file work records rests on the employer, whose failure left huge evidentiary gaps preventing any finding on duration of employment, nature of employment or terminal dues. On the Sacco refunds, the court held a Sacco is a separate entity under the Co-operative Societies Act and deductions require employee consent under section 19 of the Employment Act; withdrawal requires an application by the member, which must not be used to victimise the claimants for filing suit. The court referred the matter to the County Labour Officer to access the respondent's records and tabulate the dues owing within 45 days, with the respondent bearing the officer's costs and granting access to its premises, and parties to take a mention date upon compliance.

Key legal issues

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01

Evidentiary burden for employment records and terminal dues

Holding

The employer bears the statutory duty to submit employment records under section 10(6) and (7) of the Employment Act; having failed, the court applies the claimants' records and refers computation of dues to the County Labour Officer

Reasoning

The claimants filed payment statements at submissions stage without availing them to the respondent, but the court held these records are crucial and their non-filing by the respondent left huge gaps. The court could not determine duration or nature of employment or terminal dues without work records, so it directed the County Labour Officer to access the respondent's records and tabulate the dues owing.

p. 5
02

Refund of Sacco contributions on termination

Holding

A Sacco is separate from the employer and regulated under the Co-operative Societies Act; refunds depend on the employee applying to exit under the Sacco rules, and such withdrawal must not be used to victimise claimants for filing suit

Reasoning

The court reasoned that Sacco deductions require employee application and approval under section 19 of the Employment Act. The Sacco must be operated separately from the employer. With end of employment, the duty to apply to exit lies on the employee, and a complete set of work records will facilitate assessment of Sacco dues.

p. 6
03

Whether the claimants were causal employees not entitled to notice pay

Holding

Not definitively determined; the defence that the claimants were causal employees laid off for want of logs is a matter for assessment against the work records

Reasoning

The respondent's operations manager testified that the claimants were causal employees laid off when the sawmill ran out of logs, to be recalled when plantations were allocated, and that the 7th claimant returned to work in October 2017. The court found the records necessary to review the terms of daily, weekly and monthly wage payments before making findings.

p. 5

Legal principles established

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  • The duty to keep and file employment records under section 10(6) and (7) of the Employment Act, 2007 is vested on the employer, and the court may apply records filed by the employee where the employer fails to discharge this duty
  • An employer may only effect Sacco deductions upon the application and approval of the employee, and withdrawal from a Sacco requires an application by the member under the Sacco rules

Court orders

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  1. 1.The matter is referred to the County Labour Officer to access the respondent's work records and to tabulate and report to the court on: period of service; nature of employment; reason(s) for end of employment; any terminal dues owing, putting into account paid terminal dues
  2. 2.The County Labour Officer to file a report with the court within 45 days
  3. 3.The costs of the County Labour Officer in exercising these functions to be met by the respondent
  4. 4.The respondent to allow the County Labour Officer reasonable access to its premises and shop floor
  5. 5.A complete set of work records from the respondent to facilitate assessment of Sacco dues
  6. 6.Parties to attend, work with the appointed officer and, upon compliance, take a mention date for the court to confirm the findings and direct as appropriate
  7. 7.Where the respondent fails to comply, the County Labour Officer to report to the court for the necessary facilitation
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act over employment and labour relations claims

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, "Joshua Ondere Alibi & 7 others v Rosoga Investment Limited [2019] KEELRC 1102 (KLR)", Case Analysis (2019). Cause No. 409 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1102/eng@2019-07-11

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