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ELRCPartially AllowedNot stated in judgment· [2022] KEELRC 565 (KLR)

Kennedy Ogweno Otieno v Bedrock Holdings Limited [2022] KEELRC 565 (KLR)

Employment and Labour Relations Court
9 March 2022
1,034 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Claimant, a night guard employed by the Respondent in June 2012 at a monthly salary of Kshs. 5,600 later raised to Kshs. 6,700, resigned on 4th April 2016 and claimed terminal dues: prorated annual leave, leave travelling allowance, uniform fee refund, soap allowance, rest days/overtime, public holiday pay, underpayment of wages and housing allowances. He alleged he worked 12 hours daily without rest days or overtime and public holiday pay, and that a cheque of Kshs. 22,350 issued in February 2018 towards his dues bounced. The Respondent denied the claim, asserting the dues had been computed and paid via the dishonoured cheque, which it offered to replace. At hearing, the Claimant conceded on cross-examination that he had no evidence supporting the overtime and public holiday claims. The Respondent argued the claim was time barred under section 90 of the Employment Act and that the underpayment heads were unproved special damages. The court held the claim filed on 23rd February 2018 was limited to dues accruing from 22nd February 2015. It awarded underpayment per Legal Notice No. 117 of 2015 of Kshs. 50,931.10, unpaid house allowance of Kshs. 18,694.60 and leave pay of Kshs. 11,765.80, totalling Kshs. 81,391.50 less statutory deductions, plus costs and interest at court rates from the date of judgment. The remaining heads failed for want of proof.

Key legal issues

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01

Limitation under section 90 of the Employment Act

Holding

Only dues accruing within three years of filing suit are recoverable; claims accruing before 22nd February 2015 are time barred

Reasoning

The suit was filed on 23rd February 2018 seeking dues allegedly accruing from 2012. Under section 90 of the Employment Act, such claims must be brought within three years of accrual. The court therefore restricted recovery to dues accruing from 22nd February 2015 onwards, excluding underpayment and other dues claimed for earlier periods.

p. 2
02

Underpayment against statutory minimum wage

Holding

The Claimant is entitled to underpayment for the limitation period as per Legal Notice No. 117 of 2015, amounting to Kshs. 50,931.10 as pleaded

Reasoning

Relying on the authority cited by the Claimant that an employer must pay at least the statutory minimum wage regardless of what the employee accepted, the court awarded the underpayment computed under Legal Notice No. 117 of 2015, but only for the period not caught by limitation. The award was made as pleaded, in the sum of Kshs. 50,931.10.

p. 2
03

House allowance and leave pay

Holding

House allowance of Kshs. 18,694.60 and leave pay of Kshs. 11,765.80 awarded for the limitation period

Reasoning

The court found the Claimant entitled to unpaid house allowance within the same limitation period, awarding the pleaded sum of Kshs. 18,694.60, and further found him entitled to leave payable for the period, awarding Kshs. 11,765.80. These awards were made as pleaded and formed part of the total award of Kshs. 81,391.50.

p. 2
04

Burden of proof for overtime and other heads

Holding

The Claimant failed to prove overtime, public holiday pay, uniform fee refund, soap allowance and leave travelling allowance

Reasoning

On cross-examination the Claimant conceded there was no evidence supporting his overtime and public holiday claims. The court noted the Respondent's reliance on sections 107 and 108 of the Evidence Act placing the burden of proof on the Claimant. Those unproved heads were therefore not awarded.

p. 2

Legal principles established

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  • Terminal dues claims are subject to the three-year limitation period under section 90 of the Employment Act, computed backwards from the date of filing suit

Court orders

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  1. 1.Award of underpayment for the period covered by Legal Notice No. 117 of 2015 of Kshs. 50,931.10 as pleaded
  2. 2.Award of unpaid house allowance of Kshs. 18,694.60 as pleaded
  3. 3.Award of leave pay of Kshs. 11,765.80
  4. 4.Total award of Kshs. 81,391.50 less statutory deductions
  5. 5.Costs of the suit to the Claimant
  6. 6.Interest on the award at court rates with effect from the date of judgment

Authorities

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Legislation

  • Employment Actsection 90
  • Evidence Actsections 107 and 108
  • Legal Notice No. 117 of 2015minimum wage order

Cases cited (3)

  • Simeon Omariba Orangi V Robinson Investment Limited
    [2019] eKLR
  • Ryce Motors Ltd & Another V Elias Mukoki
    [1996] eKLR
  • Macharia Waiguru V Muranga Municipal Council & Another
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour relations claims (Employment Act; limitation under section 90 Employment Act applied)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kennedy Ogweno Otieno v Bedrock Holdings Limited [2022] KEELRC 565 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/565/eng@2022-03-09

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