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ELRCDismissedCause No 327 of 2017· [2021] KEELRC 824 (KLR)

Florence Moige Siro v G4s Kenya Limited [2021] KEELRC 824 (KLR)

Employment and Labour Relations Court
8 October 2021
2,495 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed a former G4S employee's entire claim because she waited too long to sue and could not prove her dues.

What this practically means

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Executive summary

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The claimant, employed by the respondent from 1994 until retirement after 22 years of service, sued over two matters: the publication of her photograph in the Daily Nation to advertise the respondent's guardette services without her consent, and various terminal dues claims. The respondent denied liability, contending she consented to unrestricted use of her photograph and that all terminal dues were paid; it also pleaded limitation. The court distilled two issues: entitlement to compensation for the photograph and entitlement to the reliefs sought. Applying the Court of Appeal's holding in Thuranira Karauri v Agnes Ncheche that limitation goes to jurisdiction, the court found the photograph claim was founded in tort and time barred under section 4(2) of the Limitation of Actions Act, having accrued in 1994-1995; even as a contract claim it would have lapsed under section 4(1). No leave to file out of time having been sought, the claim was dismissed for want of jurisdiction. On the dues claims: the September 2006 salary claim was also time barred; the terminal dues claim failed as the claimant admitted receiving Kshs 153,390.00 and produced no contrary tabulation; the overtime claim failed because pay slips showed rates consistent with the Regulation of Wages (Protective Security Services) Order, 1998 and no CBA or other evidence proved underpayment; the August 2016 leave claim and the Sunday off-days claim failed for want of proof. The entire claim was dismissed with no orders as to costs.

Key legal issues

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01

Whether the claim for compensation for use of the claimant's photograph is time barred

Holding

Yes; the claim, whether in tort or contract, is time barred and cannot be sustained for want of jurisdiction

Reasoning

The tortious claim accrued on publication in 1994-1995 and lapsed after three years under section 4(2) of the Limitation of Actions Act; even as a contractual claim it would have lapsed under section 4(1) after six years. No leave was sought to file out of time, so the court lacked jurisdiction.

p. 2
02

Whether the claimant proved her terminal dues claim

Holding

No; she admitted receiving Kshs 153,390.00 and offered no alternative computation

Reasoning

The claimant admitted receipt of the payment in cross-examination and did not contest the figure as an underpayment or provide any different tabulation, so the burden of proof was not discharged.

p. 3
03

Whether the claimant was underpaid overtime

Holding

No; payments matched the Regulation of Wages (Protective Security Services) Order, 1998 rates

Reasoning

Pay slips showed payments at 1.5 hours on normal days and 2 hours on rest days, consistent with the Order; the claimant produced no CBA or other evidence of a higher rate, and any recoverable claim was limited to the three years preceding suit by section 90 of the Employment Act.

p. 3

Legal principles established

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  • The issue of limitation goes to jurisdiction and must be addressed first
  • Overtime under the Regulation of Wages (Protective Security Services) Order, 1998 is payable at one-and-a-half times the normal rate for excess hours on a normal working day and twice the rate on a rest day

Court orders

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  1. 1.The claim in its entirety is dismissed with no orders as to costs

Authorities

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Legislation

  • Employment Actsection 51; section 90
  • Limitation of Actions Actsection 4(1); section 4(2)
  • Regulation of Wages (Protective Security Services) Order, 1998overtime rates
  • Constitution of KenyaArticle 159(2)(d); Article 48
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (8)

  • Jessica Clarise Wanjiru vs David Aesthetics & Reconstruction Centre & 2 others
    (2017) eKLR
  • Wangeci Waweru Mwende vs Tecno Mobile limited; Rogers Ouma t/a Ojwok Photograph (third party)
    (2020) eKLR
  • Anne Njoki vs KTDA Agency Limited
    (2019)
  • Direcon Ltd vs Samai
    (19915-1198)
  • Banking Insurance and Finance Union (K) vs Bank of India
  • Mukuru Munge vs Florence Shingi Mwawana & 2 others
    (2016)
  • Thuranira Karauri Vs Agnes Ncheche
    [1997] eKLR
  • Kenya National Private Security Workers Union v G4s Kenya Limited & 2 others; Central Organisation of Trade Unions (K) & 4 others (Interested Parties)
    [2021] eKLR
Jurisdiction invoked
Article 162(2) of the Constitution (employment and labour relations jurisdiction); claims governed by the Employment Act, 2007 and the Limitation of Actions Act

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, "Florence Moige Siro v G4s Kenya Limited [2021] KEELRC 824 (KLR)", Case Analysis (2021). Cause No 327 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/824/eng@2021-10-08

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