Albano Kathenya Kithure v Brinks Security Services Limited [2021] KEELRC 1652 (KLR)

There was a discrepancy between the amount pleaded, the testimony and the payroll, but the incomplete payroll and pay slips showed earnings below the minimum wage for each year. The court computed the shortfall for each period by loading the minimum required wage with 15% house allowance and deducting actual pay, arriving at the total claimed. Having been underpaid for all months worked, the Claimant received the amount as prayed.

RW1 admitted on cross-examination that the Claimant worked from 6 am to 6 pm. The muster roll only recorded attendance days, not hours worked. Working 12 hours daily yielded 84 hours per week against the 52 hours permitted under the Regulation of Wages [Protective Security] Services Order 1998. The claim of 96 hours per month was less than the entitlement even after excluding off days and leave, so overtime was awarded as prayed.

RW1 conceded the Claimant was entitled to leave for 2014, disputing only the quantum; the court used the actual last salary of Kshs.10,500 rather than the claimed Kshs.10,911.70. On the uniform refund, the Claimant testified he cleared with the Respondent and returned the uniform and was issued an acknowledgment, so the Kshs.2,400 deducted was refundable.

The resignation letter did not state the termination was mutual, and under section 36 of the Employment Act the Claimant was required to give one month's notice. The Claimant did not respond to the counterclaim, and the Respondent's acceptance letter indicated the notice period would be recovered. However, since the Claimant worked the whole of January 2015, only the unserved days were recoverable.