Peter Wambugu Kariuki v Board of Management Mereroni Primary School & another [2020] KEELRC 1351 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Custody of employment records
The employer alone bears the statutory duty to keep employment records; demanding that the employee supply his terms of employment is contrary to law
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.
Underpayment of wages
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
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.
Justification of summary dismissal
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
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.
Leave, rest days, public holidays and overtime
In the absence of employer records showing leave or rest days taken or holiday/overtime compensation paid, these dues must be assessed and awarded
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.
Legal principles established
#- 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
#- 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.The claimant to be issued with a certificate of service
- 3.Costs awarded to the claimant
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.