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ELRCDismissedStatement of Claim dated 9th March 2018, filed 14th March 2018 (ELRC, Mombasa)· [2020] KEELRC 1525 (KLR)

George Ogonda Opiyo v China Dalian International Economic & Technical Group Ltd Bachuma Gate Project; CAS Consultant Engineering Ltd (Interested Party) [2020] KEELRC 1525 (KLR)

Employment and Labour Relations Court
27 February 2020
LNLINNET NDOLO
358 words in judgment
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The bottom line

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A Kenyan court dismissed an overtime claim because the worker produced only one form and could not prove the exact amount owed.

What this practically means

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Executive summary

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The Claimant sued for overtime compensation of Kshs. 67,932, alleging he was employed by the Interested Party as a Road Inspector on 2nd March 2015. The Interested Party was a consultant in the Maji ya Chumvi-Bachuma Gate Road Project, for which the Respondent was the contractor. It was alleged that under an arrangement between the Respondent and the Interested Party, the Interested Party paid the Claimant's normal-hours salary (8.00 am to 5.00 pm) while the Respondent paid overtime. The Claimant alleged that all overtime had been paid save for November and December 2017, and sought Kshs. 67,932 plus costs and interest. Neither the Respondent nor the Interested Party filed a response, and the matter proceeded by way of formal proof. The court held that overtime compensation is special damages which must be specifically pleaded and proved with certainty and particularity, applying the Court of Appeal's decision in Richard Okuku Oloo v South Nyanza Sugar Co. Ltd. The Claimant had produced only an overtime form bearing his name, without demonstrating any nexus between the contents of the form and the amount claimed. The court found the claim unproved, dismissed it, and made no order for costs. Judgment was delivered at Mombasa on 27th February 2020 by Linnet Ndolo, Judge.

Key legal issues

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01

Whether the Claimant proved the quantum of overtime compensation claimed as special damages

Holding

The claim was not proved; production of a single overtime form without establishing the nexus between the form and the amount claimed fell short of the required standard of proof for special damages

Reasoning

Overtime compensation is special damages, which must be specifically pleaded and proved with certainty and particularity. In formal proof proceedings the Claimant produced only an overtime form bearing his name. He adduced no evidence linking the contents of that form to the sum of Kshs. 67,932 claimed from the Respondent. Without that nexus, the court could not award the amount claimed, and the claim failed in its entirety.

p. 1

Legal principles established

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  • Special damages must be specifically pleaded and proved with a degree of certainty and particularity

Court orders

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  1. 1.The Claimant's claim for overtime compensation is dismissed
  2. 2.No order for costs

Authorities

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Cases cited (1)

  • Richard Okuku Oloo v South Nyanza Sugar Co. Ltd
    [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act over a claim for overtime compensation (employment dispute)

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, "George Ogonda Opiyo v China Dalian International Economic & Technical Group Ltd Bachuma Gate Project; CAS Consultant Engineering Ltd (Interested Party) [2020] KEELRC 1525 (KLR)", Case Analysis (2020). Statement of Claim dated 9th March 2018, filed 14th March 2018 (ELRC, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1525/eng@2020-02-27

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