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ELRCPartially AllowedCause No. 55 of 2018· [2020] KEELRC 1894 (KLR)

Isack Khaguli Maswa v Leonard Githaiga t/a Mid-Rift Hotel Formerly Gituamba Pub (2000) Limited [2020] KEELRC 1894 (KLR)

Employment and Labour Relations Court of Kenya
6 February 2020
MMM. Mbaru
1,618 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer with no employment records lost on wage underpayment claims, but the worker's vague testimony cost him the termination and overtime claims.

What this practically means

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Executive summary

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The claimant, employed as a bouncer by the respondent from 29 February 2004 until October 2016, claimed underpayment of wages, public holiday pay, notice pay, overtime, leave pay and compensation following what he said was a verbal dismissal on 3 October 2016, after which he received Ksh.24,695. The respondent denied the claims, asserting the claimant worked regulated shifts ending at 3am per the club's licence, took annual leave, was paid double for public holidays and Sundays, and deserted duty, with terminal dues of Ksh.24,695 paid through his advocate's demand. The court found the respondent in breach of its statutory duty under sections 10 and 74 of the Employment Act to keep work records, so the claimant's testimony on underpayment had to be believed. However, the claimant's account of the termination was hazy and inconsistent, and correspondence between the parties' advocates indicated terminal dues had been agreed and paid, so no finding of unfair termination was made. The overtime claim failed because the 6pm-to-3am shift was unchallenged and the claim was grossly exaggerated; the public holiday claim failed on the unchallenged double payments evidenced in the pay slips; and the leave claim was lost for failure to state when leave was last taken, accumulated leave being a continuing injury recoverable under section 90, following the Court of Appeal in E.Torgbor v Ladislaus Odongo Ojuok. The court referred the assessment of underpayments from February 2004 to September 2016 to the County Labour Officer, Nakuru, to report within 45 days, with each party bearing its own costs.

Key legal issues

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01

Duty to keep work records and evidential consequence of failure

Holding

The respondent's admitted failure to keep work records means the court must believe the claimant's testimony on underpayment; underpayment is referred to the County Labour Officer for assessment

Reasoning

Sections 10 and 74 of the Employment Act require employers to keep work records for every employee for at least five years after termination and to produce them in court. The respondent's witness admitted no work records were kept even for herself. In the absence of records the claimant's word prevails, and the assessment of what was paid against the Wage Orders is delegated to the County Labour Officer.

p. 3
02

Unfair termination

Holding

The issue does not arise; the claimant's account was hazy and the demand letters suggest terminal dues were agreed and paid after he absconded

Reasoning

The claimant gave inconsistent accounts of how his employment ended - verbal dismissal by the manager versus a dispute over a customer who left the premises. The demand letter from his advocates acknowledged termination was agreed and terminal benefits payable, while the respondent's advocates responded that he had absconded and dues of Ksh.24,695 were paid and the cheque encashed. On this evidence no finding of unfair termination could be sustained.

p. 3
03

Public holiday and Sunday pay

Holding

The claim failed because pay slips showed double payment for public holidays and Sundays, which the claimant did not challenge

Reasoning

The payment statements for April to June 2015 showed a formula of double payment covering public holidays and Sundays. The claimant did not challenge this formula, and his assertion that he never noticed the double payments was treated as dishonest and an attempt at unjust enrichment.

p. 3

Legal principles established

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  • Where an employer fails to keep work records as required under sections 10 and 74 of the Employment Act, the court should believe the testimony of the employee
  • Accumulated leave beyond the statutory 18-month period constitutes a continuing injury recoverable only within the limitation period under section 90, and a claimant who does not state when leave was last taken loses such claims

Court orders

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  1. 1.The matter is referred to the County Labour Officer, Nakuru, to tabulate the underpayments due to the claimant from February 2004 to September 2016 as a general labourer based on the applicable Wage Orders
  2. 2.A report of the assessment shall be filed in court within 45 days
  3. 3.Each party shall bear own costs

Authorities

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Legislation

  • Employment Act, 2007section 10
  • Employment Act, 2007section 74
  • Employment Act, 2007section 28
  • Employment Act, 2007section 90

Cases cited (1)

  • E.Torgbor versus Ladislaus Odongo Ojuok
    [2015] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007

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, "Isack Khaguli Maswa v Leonard Githaiga t/a Mid-Rift Hotel Formerly Gituamba Pub (2000) Limited [2020] KEELRC 1894 (KLR)", Case Analysis (2020). Cause No. 55 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1894/eng@2020-02-06

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