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ELRCPartially AllowedCause No. 113 of 2015· [2020] KEELRC 1351 (KLR)

Peter Wambugu Kariuki v Board of Management Mereroni Primary School & another [2020] KEELRC 1351 (KLR)

Employment and Labour Relations Court of Kenya at Nakuru
27 February 2020
1,266 words in judgment
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The bottom line

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A Kenyan court ruled a school guard was underpaid but lost compensation for deserting duty, confirming employers must keep all employment records.

What this practically means

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Executive summary

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The claimant, employed by the 1st respondent Board of Management of Mereroni Primary School in August 2010 as a night guard at Ksh.2,500 per month (later Ksh.3,000), sued for terminal dues following the termination of his employment, alleging verbal termination without notice, hearing or reasons, underpayment, denial of leave, absence of pension contributions, and uncompensated work of 12 hours a day for 7 days a week including public holidays. He claimed notice pay, underpayments, house allowance, leave, service pay, rest day pay, public holiday pay, overtime, compensation, costs and a certificate of service. The defence asserted that the claimant took his leave, was heard before termination, and was dismissed for lawful cause. The court held that the employer is the custodian of work records under sections 10 and 74 of the Employment Act and cannot demand the employee supply his own terms; that the confirmed wage of Ksh.2,500 constituted underpayment contrary to wage orders; that absence of records entitled the claimant to assessed leave, rest day, public holiday and overtime pay; but that desertion of duty, notified by letter dated 21st October 2014 and copied to the labour officer, amounted to gross misconduct under section 44, rendering the summary dismissal justified. Notice pay and compensation were therefore refused. Judgment was entered for the claimant, with terminal dues (underpayments inclusive of house allowance, leave, rest days, overtime and public holiday pay) referred to the County Labour Officer, Nakuru for assessment, a certificate of service ordered, and costs awarded to the claimant.

Key legal issues

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01

Custody of employment records

Holding

The employer alone bears the statutory duty to keep employment records; demanding that the employee supply his terms of employment is contrary to law

Reasoning

Sections 10 and 74 of the Employment Act place the duty to keep and produce work records on the employer once a suit is filed. The respondent's demand that the claimant supply his own written terms of employment was unlawful, and the court drew adverse inferences from the respondent's failure to produce attendance and leave records.

p. 2
02

Underpayment of wages

Holding

Payment of Ksh.2,500 and later Ksh.3,000 per month to a security guard was below the wage order minimum, entitling the claimant to assessed underpayments plus house allowance from August 2010 to December 2014

Reasoning

The respondent confirmed the claimant was paid Ksh.2,500 per month as a security guard. The court held this was below the minimum wage set by wage orders and guidelines, and directed assessment of the underpayments for the period of employment, together with house allowances.

p. 2
03

Justification of summary dismissal

Holding

Desertion of duty is gross misconduct under section 44 of the Employment Act; the claimant, notified of desertion and copied to the labour officer, gave no response, so the summary dismissal was justified and notice pay and compensation were refused

Reasoning

A letter dated 21st October 2014 accused the claimant of desertion and was copied to the labour officer. The claimant denied receipt, but the court accepted service given the copies, reasoned that the claimant likely took time to attend to his injured child and report to the chief, and found that desertion constitutes gross misconduct under section 44 justifying summary dismissal.

p. 2
04

Leave, rest days, public holidays and overtime

Holding

In the absence of employer records showing leave or rest days taken or holiday/overtime compensation paid, these dues must be assessed and awarded

Reasoning

The court found no records that the claimant took annual leave or weekly rest days, and no records of compensation for public holidays or overtime. Under sections 27 and 28 of the Employment Act these entitlements survive even the desertion, and work hours of 6pm to 6am daily for 7 days a week established overtime to be assessed.

p. 3

Legal principles established

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  • The employer is the custodian of employment records and bears the duty to keep and produce work records in court; the duty cannot be reversed onto the employee
  • Desertion of duty amounts to gross misconduct justifying summary dismissal where the employee is notified and does not respond

Court orders

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  1. 1.The matter referred to the County Labour Officer, Nakuru for assessment of terminal dues for the period August, 2010 to December, 2014 covering underpayments inclusive of house allowance, pay for leave days, pay for rest days, pay for overtime for work at 12 hours for 7 days each week, and pay for work during public holidays
  2. 2.The claimant to be issued with a certificate of service
  3. 3.Costs awarded to the claimant
  4. 4.Mention in 30 days for the County Labour Officer report
Jurisdiction invoked
Employment and labour relations dispute under the Employment Act, 2007 (court's statutorily conferred jurisdiction over employment 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, "Peter Wambugu Kariuki v Board of Management Mereroni Primary School & another [2020] KEELRC 1351 (KLR)", Case Analysis (2020). Cause No. 113 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1351/eng@2020-02-27

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