Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No. 348 of 2014· [2019] KEELRC 1712 (KLR)

John Maina Kariuki & another v Babs Security Servic Ltd [2019] KEELRC 1712 (KLR)

Employment and Labour Relations Court of Kenya at Nakuru
14 March 2019
1,921 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

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

#
In this first-instance employment cause, two night watchmen sued BABS Security Servic Ltd claiming notice pay, unpaid wages for April and May 2014, underpayments, overtime, off-day pay, leave and compensation following alleged summary dismissal when they demanded wage arrears during a workers' stoppage at Menengai Hill forest in June 2014. The respondent alleged the claimants were casual employees employed for less than six months, worked 8-hour shifts and deserted duty, and that final dues were paid. The respondent filed no work records and called no witness. The court applied sections 10(6) and (7), 73 and 74 of the Employment Act, 2007, holding that where an employer fails to file work records the court must believe the employee, leaving the defence as mere denials. The 2nd claimant's case was removed for want of prosecution as he neither appeared nor gave evidence. The court found the 1st claimant worked 15 hours daily unchallenged but reasonably fixed shifts at 12 hours, giving 3 overtime hours per day. Desertion was unproved; dismissal for demanding wage arrears was unfair termination under section 45, and non-payment of wages was an unfair labour practice under section 5 read with Article 30 of the Constitution. The claimant's monthly employment for six months converted by operation of law under section 37 into employment with full benefits. Judgment was entered for the 1st claimant with a declaration of unfair termination, compensation, notice pay, unpaid wages, underpayments, overtime, off-day pay, a Certificate of Service and costs.

Key legal issues

#
01

Burden of proof where employer fails to file work records

Holding

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

Reasoning

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.

p. 2
02

Unfair termination of the 1st claimant

Holding

The defence of desertion failed for lack of evidence; dismissal for demanding wage arrears was unfair termination under section 45 of the Employment Act

Reasoning

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.

p. 3
03

Casual employment and conversion under section 37

Holding

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

Reasoning

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.

p. 3
04

Quantum of overtime and other dues

Holding

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

Reasoning

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.

p. 3

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. 1.A declaration that employment was terminated unfairly
  2. 2.Compensation awarded at kshs.30,348.45
  3. 3.Notice pay Ksh.10,116.15
  4. 4.Unpaid wages for April and May, 2014 ksh.23,267.10
  5. 5.Underpayments Ksh.13,950.65
  6. 6.Overtime pay ksh.11,205.60
  7. 7.Pay for untaken rest/off days Ksh.31,126.60
  8. 8.The claimant shall be issued with a Certificate of Service in accordance with section 51 of the Employment Act, 2007
  9. 9.Costs of the suit to the claimant

Authorities

#

Legislation

  • Employment Act, 2007sections 10(6) and (7)
  • Employment Act, 2007sections 73 and 74
  • Employment Act, 2007section 5
  • Employment Act, 2007section 45
  • Employment Act, 2007section 2
  • Employment Act, 2007sections 10 and 37
  • Employment Act, 2007section 51
  • Constitution of Kenya, 2010Article 30

Cases cited (4)

  • Jane Njeri Wanyoike & 23 others versus Pan Africa Insurance Company Limited & 2 others
    [2017] eKLR
  • Jason Mogaka Otiso versus Shadrack Obuga Mukanda
    [2016] eKLR
  • Rashid Mazuri Ramadhani & 10 others versus Doshi & Company (Hardware) Limited & another
    [2018] eKLR
  • Krystalline Salt Limited vs. Kwekwe Mwakele & 67 others
    [2017] eKLR
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.