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ELRCPartially AllowedELRC Appeal (Mariakani) - Employment and Labour Relations Appeal· [2022] KEELRC 1553 (KLR)

Yaa v SGA Security Solutions Limited (Employment and Labour Relations Appeal E002 of 2022) [2022] KEELRC 1553 (KLR)

Employment and Labour Relations Court
29 July 2022
BMB. O. M. Manani
5,751 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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Kenyan employers who don't issue written contracts risk paying for disputed terms like overtime out of their own pocket.

What this practically means

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Executive summary

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This was a first appeal to the Employment and Labour Relations Court at Mariakani against the decision of the Magistrate's Court in ELRC No. 206 of 2019, in which the trial magistrate, on 8th December 2021, dismissed most of a security guard's claim for terminal dues upon her resignation, awarding only Ksh. 2,439/= in overtime. The Appellant raised seven grounds, condensed into three questions: whether the judgment was against the weight of evidence, whether the standard of proof was wrongly raised, and whether claims should have succeeded because the Respondent produced no records. The court, per Manani J, held that the trial court did not raise the standard of proof beyond reasonable doubt and dismissed that ground. However, the court found the trial court misdirected itself by disregarding the reverse burden under section 10(7) of the Employment Act, which shifts to the employer the burden of proving or disproving disputed terms of a contract that, by reason of its duration over six years, was required to be in writing under section 9. The Respondent produced no written contract, so mere denials could not displace the Appellant's prima facie evidence from her pay slip. The court awarded leave travelling allowance of Ksh. 950/= (a statutory right under Regulation 13 of the Regulation of Wages (Protective Security Services) Order, 1998) and overtime of Ksh. 551,480/=, based on 12-hour workdays against the 52-hour week prescribed by Regulation 6. Claims for house allowance, accrued leave and public holiday pay were declined, and the trial court's order on gratuity was left undisturbed as no appeal ground covered it. The appeal was allowed in part, with interest and costs to the Appellant.

Key legal issues

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01

Whether the trial court raised the standard of proof to beyond reasonable doubt

Holding

Ground dismissed - the trial court applied the conventional civil standard of balance of probabilities; its error was in the allocation of burden, not the standard

Reasoning

The appellate court examined the trial court's reasoning and found it expressly acknowledged the balance of probabilities standard. The actual flaw was that the trial court applied the conventional burden under sections 107 and 108 of the Evidence Act instead of the reverse burden imposed by section 10(7) of the Employment Act for terms required to be in writing.

p. 4
02

Effect of section 10(7) Employment Act reverse burden on claims for leave travelling allowance and overtime

Holding

Ground allowed - the trial court misdirected itself by disregarding section 10(7); judgment entered for the Appellant on leave travelling allowance (Ksh. 950/=) and overtime (Ksh. 551,480/=)

Reasoning

The contract, running over six years, was required to be in writing under section 9. The Respondent produced no written contract. The pay slip gave prima facie evidence of 12-hour workdays and entitlement to leave, so mere denials could not discharge the employer's statutory burden. Regulation 6 of the Protective Security Services Order prescribes a 52-hour week, making 12-hour days a 4-hour daily overtime.

p. 8
03

Whether gross/consolidated salary covered house allowance

Holding

Claim declined - the Appellant's own admission that she earned an all-inclusive salary discharged the Respondent of any further evidential burden

Reasoning

Although the Respondent failed to produce the written contract, during re-examination the Appellant admitted her salary was 'all inclusive'. The court held that this admission was sufficient proof the salary covered house allowance, rendering additional evidence from the Respondent unnecessary.

p. 6
04

Leave travelling allowance as a statutory right

Holding

Ground allowed - leave travelling allowance is a statutory right implied in every security guard's contract of service under Regulation 13 of the 1998 Order

Reasoning

Regulation 13 of the Regulation of Wages (Protective Security Services) Order, 1998 grants Ksh. 1,100 travelling allowance after each twelve months of continuous service. Section 48 of the Labour Institutions Act renders wages order minimum terms non-derogable. The employer bore the burden under section 10(7) and section 112 of the Evidence Act to disprove non-payment.

p. 7

Legal principles established

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  • Where an employer fails to produce a written contract required under section 9 of the Employment Act, the burden of proving or disproving an alleged term of employment rests on the employer under section 10(7)
  • A pay slip is not evidence of the terms of engagement between employer and employee
  • Describing salary as 'gross' or 'consolidated' does not of itself prove all benefits are included; it raises only a rebuttable presumption of fact
  • Leave travelling allowance is a statutory right and irreducible minimum term for security guard employees under Regulation 13 of the Regulation of Wages (Protective Security Services) Order, 1998
  • Minimum terms established in a wages order may not be varied by agreement and form part of the contract

Court orders

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  1. 1.Set aside the trial court's judgment
  2. 2.Award to the Appellant leave travelling allowance of Ksh. 950/= as pleaded
  3. 3.Award to the Appellant overtime pay of Ksh. 551,480/=
  4. 4.Declined the claims for house allowance and leave pay
  5. 5.Declined the claim for pay for work performed on public holidays
  6. 6.Awards to attract interest at court rates from the date of institution of the claim before the trial court till payment in full
  7. 7.Costs of the Appeal to the Appellant
  8. 8.Award subject to statutory deductions under section 49 of the Employment Act where applicable

Authorities

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Legislation

  • Employment Actsections 9(1), 9(2), 10(7), 20, 28, 49
  • Evidence Actsections 107, 108, 112
  • Labour Institutions Act, 2007section 48
  • Regulation of Wages (Protective Security Services) Order, 1998Regulations 6 and 13
  • Employment and Labour Relations Court (Procedure) Rules, 2016rule 21

Cases cited (8)

  • Moses Odhiambo Muruka & another v Stephen Wambembe Kwatenge & another
    [2018] eKLR
  • Karungi and Another v Kibiya and 3 others
    (1987) eKLR 347
  • Grain Pro Kenya Inc. Ltd v Andrew Waithaka Kiragu
    [2019] eKLR
  • Vipingo Ridge Limited v Swalehe Ngonge Mpitta
    [2022] eKLR
  • Stephen O Edewa v Lavington Security Limited
    (2019) eKLR
  • Charity Wambui Muriuki v Total Security Surveillance Ltd
    (2017) eKLR
  • Associated Motors Co. Ltd v Blue Sea Services Ltd
    [2019] eKLR
  • Fred J Owuor alias Fred OJ Owuor V Tech Institute of Management Ltd
    (2017) eKLR
On appeal from
Magistrate's Court at Mariakani (ELRC)
ELRC No. 206 of 2019
Jurisdiction invoked
First appeal from the Magistrate's Court exercising delegated employment and labour relations jurisdiction under Gazette Notice No. 6024 of 2018

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (8)

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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, "Yaa v SGA Security Solutions Limited (Employment and Labour Relations Appeal E002 of 2022) [2022] KEELRC 1553 (KLR)", Case Analysis (2022). ELRC Appeal (Mariakani) - Employment and Labour Relations Appeal. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1553/eng@2022-07-29

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