John Maina Kariuki & another v Babs Security Servic Ltd [2019] KEELRC 1712 (KLR)
The bottom line
#A Kenyan court ruled that employers who keep no work records lose employment disputes, converting this 'casual' watchman into a full employee with full benefits.
What this practically means
#Executive summary
#Key legal issues
#Burden of proof where employer fails to file work records
The employer, as custodian of work records, must file them once a claim is lodged; failure leaves the defence as mere denials and the employee's evidence stands unchallenged
Section 10(6) and (7) of the Employment Act, 2007 obliges the employer to file work records. The respondent filed no work records and called no witness to be examined. Citing Jane Njeri Wanyoike and Jason Mogaka Otiso, the court held that once an employee proves he offered his labour, non-production of records works to the employer's disadvantage and sanctions should follow, including referral to the Labour Officer.
Unfair termination of the 1st claimant
The defence of desertion failed for lack of evidence; dismissal for demanding wage arrears was unfair termination under section 45 of the Employment Act
The respondent alleged the claimant deserted duty on 10th June 2014 but produced no evidence of addressing the alleged gross misconduct or giving the claimant a hearing. The claimant's unchallenged evidence was that he left his colleague standing in his shift to go and demand unpaid wages and was dismissed by the manager. Unpaid wage arrears were admitted by silence.
Casual employment and conversion under section 37
The claimant was not a casual employee; working monthly for over a month without stoppage converted the employment by operation of law to employment with full benefits
The statutory definition of a casual employee under section 2 read with sections 10 and 37 of the Employment Act was applied. The claimant worked six months on the same duties, paid monthly, with no daily cessation of work. Following the Court of Appeal in Rashid Mazuri Ramadhani, casual engagement plus work aggregating more than one month mandates conversion.
Quantum of overtime and other dues
Overtime assessed at 3 hours per day (12-hour shift basis) at Ksh.11,205.60; notice pay, unpaid wages, underpayments and off-day pay awarded as claimed or as assessed
The claimant's evidence that there were two shifts made 15 continuous hours infeasible; 12 hours per shift was reasonable, giving 3 overtime hours daily. Notice pay was assessed at one month's gross wage under the Wage Orders; unpaid April and May 2014 wages at Ksh.23,267.10; underpayments at Ksh.13,950.65; and off days confirmed at Ksh.31,126.60.
Legal principles established
#- Where an employer fails to file work records required by statute, the court must believe the employee's evidence on employment terms and termination
- Failure to pay an employee due wages in time and in full is an unfair labour practice amounting to servitude, prohibited under section 5 of the Employment Act read with Article 30 of the Constitution
- Dismissal of an employee for demanding payment of wage arrears is unfair termination under section 45 of the Employment Act, 2007
- Alleged desertion must be proved by the employer showing it sought to hear the employee; mere allegation is no defence
- A casual employee engaged on a casual basis who works for more than one month without stoppage is converted by operation of law to an employee with full benefits under the Employment Act
Court orders
#- 1.A declaration that employment was terminated unfairly
- 2.Compensation awarded at kshs.30,348.45
- 3.Notice pay Ksh.10,116.15
- 4.Unpaid wages for April and May, 2014 ksh.23,267.10
- 5.Underpayments Ksh.13,950.65
- 6.Overtime pay ksh.11,205.60
- 7.Pay for untaken rest/off days Ksh.31,126.60
- 8.The claimant shall be issued with a Certificate of Service in accordance with section 51 of the Employment Act, 2007
- 9.Costs of the suit to the claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment and labour relations claims (Employment Act, 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Maina Kariuki & another v Babs Security Servic Ltd [2019] KEELRC 1712 (KLR)", Case Analysis (2019). Cause No. 348 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1712/eng@2019-03-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.