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ELRCPartially AllowedELR Cause No. 102 of 2017· [2022] KEELRC 980 (KLR)

Wycliffe Juma Ilukol v Board of Management Father Okodui Secondary School [2022] KEELRC 980 (KLR)

Employment and Labour Relations Court
26 January 2022
JKJ. W. Keli
3,400 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan school legally retired its watchman at 60, but still owed him unpaid wages, overtime, and service pay worth over Kshs. 400,000.

What this practically means

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Executive summary

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The claimant, employed as a grounds man from 2003 and later as a watchman/security until retirement on 1st June 2017 at age 62, sued the Board of Management of Father Okodui Secondary School for unlawful termination and various employment benefits. The court, framed three issues: the nature and terms of employment; the fairness and lawfulness of the termination; and entitlement to relief. On termination, the court held that since the claimant had exceeded the mandatory retirement age of 60 by two years, the termination letter stating the reason complied with section 43 of the Employment Act; section 41 procedural requirements do not apply to mandatory retirement; the minutes suggesting one year's notice did not relate to the claimant; only one month's statutory notice was due and the claim for one year's notice pay failed. However, the court found underpayment of wages below the statutory minimum for three years, awarding Kshs. 183,045.60, relying on the employer's failure to produce employment records under sections 74 and 90. Service pay of Kshs. 40,717.43 was awarded for the seven years (2003–2010) before NSSF enrolment. Overtime of Kshs. 158,866.25 was granted in full as the respondent produced no overtime payment records; public holidays pay was granted at half (Kshs. 17,389.90). Leave and rest days claims were dismissed. The court declared the termination fair and lawful, ordered a certificate of service under section 51, awarded costs plus interest, and granted a 30-day stay.

Key legal issues

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01

Fairness and lawfulness of termination upon attainment of mandatory retirement age

Holding

The termination was fair and lawful

Reasoning

The Claimant had exceeded the mandatory retirement age of 60 by two years. The letter of termination stated the reason for termination, complying with section 43. Section 41 procedural protections (accompaniment by union official or fellow employee) do not apply to mandatory retirement on age grounds. The minutes resolving one year's notice postdated the Claimant's departure and did not apply to him. Only one month's statutory notice was required.

p. 4
02

Underpayment of wages

Holding

Claimant was paid below the statutory minimum wage; awarded Kshs. 183,045.60 for three years

Reasoning

Under section 90 the claim was limited to three years. The employer bore the burden under section 74 to produce employment records and failed to do so. Comparing the payroll salaries against the prescribed minimum wage plus 15% housing allowance for a watchman, the court computed monthly underpayments for 2014–2017 and awarded the aggregate.

p. 4
03

Service pay

Holding

Service pay awarded for the 7 years (2003–2010) before NSSF enrolment

Reasoning

The Claimant produced evidence of NSSF dues from 2011; the employer was responsible for proving NSSF payment for 2003–2010 and did not. Service pay under section 35(5) is payable for the non-NSSF years but ceases upon admission to the NSSF scheme under section 35(6)(d).

p. 4
04

Overtime and public holidays pay

Holding

Overtime claim granted in full at Kshs. 158,866.25; public holidays pay granted at half, Kshs. 17,389.90

Reasoning

The respondent failed to produce overtime payment records; the burden of producing employment records lay with the employer. The attendance register supported that terms of service were likely the same in 2014 and 2015. Having granted full overtime, the court granted half the public holidays claim.

p. 5

Legal principles established

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  • Section 41 of the Employment Act does not apply to termination on ground of mandatory retirement based on age
  • The employer bears responsibility to produce employment records, failing which the court will rely on the evidence on record
  • Payment of wages below the prescribed minimum wage is unlawful
  • Service pay is not payable once an employee is admitted to the NSSF scheme

Court orders

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  1. 1.A declaration that the termination on ground of having attained mandatory retirement age was fair and lawful
  2. 2.Payment of service pay for wages of 15 days for each of the 7 years worked without NSSF, total Kshs. 40,717.43
  3. 3.Payment of total sum of Kshs. 183,045.60 as underpaid wages for 3 years
  4. 4.Payment of overtime for 3 years amounting to Kshs. 158,866.25
  5. 5.Public holidays pay of Kshs. 17,389.90
  6. 6.All amounts in (b), (c), (d) and (e) subject to statutory deductions
  7. 7.The Respondent to issue the Claimant with a certificate of service under section 51 of the Employment Act 2007
  8. 8.The Claimant awarded costs of the claim plus interest at court rates from date of judgment until payment in full
  9. 9.Stay granted for 30 days

Authorities

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Legislation

  • Employment Act, 2007section 35
  • Employment Act, 2007section 35(5)
  • Employment Act, 2007section 35(6)(d)
  • Employment Act, 2007section 36
  • Employment Act, 2007section 41
  • Employment Act, 2007section 43
  • Employment Act, 2007section 45(2)
  • Employment Act, 2007section 51
  • Employment Act, 2007section 74
  • Employment Act, 2007section 90
  • Regulation of Wages Orderminimum wage provisions

Cases cited (1)

  • Joseph Akoto Ajwang -vs Kengen Company limited (2019) eKLR
    (2019) eKLR
Jurisdiction invoked
Employment and labour relations jurisdiction of the Employment and Labour Relations Court (Employment Act, 2007)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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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, "Wycliffe Juma Ilukol v Board of Management Father Okodui Secondary School [2022] KEELRC 980 (KLR)", Case Analysis (2022). ELR Cause No. 102 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/980/eng@2022-01-26

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