Makomo v National Council, Young Men Christian Association, Kenya (Cause 1813 of 2016) [2022] KEELRC 1627 (KLR)
The bottom line
#A Kenyan court ruled an employer who couldn't show proof of paying a worker's salary must pay it, but vague overtime claims fail.
What this practically means
#Executive summary
#Key legal issues
#Whether the respondent paid the claimant's salary for June 2016
The court drew an adverse inference that the salary was withheld as the respondent produced no payment voucher for June 2016 and its own letter showed dues were being withheld pending payment of Kshs 86,200/= by the claimant
The respondent asserted payment but produced payment vouchers only for other months. Its letter of July 6, 2016 expressly stated dues were withheld pending the claimant paying Kshs 86,200/=. The court found this corroborated the claimant's assertion and drew an adverse inference, awarding Kshs 24,717/=.
Whether the claimant was entitled to an acting allowance as gym manager
Claim declined - not proved and time barred under section 90 of the Employment Act
The claimant's contract designated him a gym instructor; the acting arrangement was verbal and unsupported by evidence. Further, the allowance claimed a continuing injury for 2013-2014, which under section 90 should have been claimed within 12 months of cessation; the claim was time barred.
Whether the claimant was entitled to overtime pay
Claim declined for lack of particulars despite the contractual clause permitting extra hours being found unenforceable
Clause 6 of the contract permitting work beyond 48 hours conflicted with Regulation 5(1) of the Regulation of Wages (General Order), 1982 and was unenforceable. However, the claimant gave a global figure without specifying the period or contracts covered, and per Rogoli Ole Manadiegi the burden of proving excess hours rests with the employee.
Whether the claimant was entitled to unpaid leave days
Allowed on a prorated statutory basis - 3.5 days (Kshs 2,883.65)
The respondent's argument that the claimant worked only two months was rejected; entitlement to leave accrues prorated. The last contract omitted leave provision, so section 28(1) of the Employment Act applying 21 days minimum applied, prorated to 3.5 days for a two-month contract.
Whether the claimant was entitled to a certificate of service
Entitled pursuant to section 51(2) of the Employment Act as the employment relationship is not in dispute
Since the existence of the employment relationship was undisputed and had ended, the statutory entitlement to a certificate of service applied regardless of the outcome of the monetary claims.
Legal principles established
#- An employer alleging payment of salary must produce evidence of the payment, failing which an adverse inference may be drawn
- A contractual clause requiring work beyond the statutory maximum hours without overtime pay is unenforceable as contrary to the law
- The burden of establishing hours served in excess of the legal maximum, and of quantifying an overtime claim, rests with the employee
- Where a contract is silent on leave, the statutory minimum of 21 days annual leave under section 28(1) of the Employment Act applies on a prorated basis
Court orders
#- 1.Claim allowed to the extent that the claimant is entitled to salary for the month of June 2016 (Kshs 24,717/=) and payment for 3.5 unpaid leave days (Kshs 2,883.65), totaling Kshs 27,600.65
- 2.The said sum to attract interest at court rates from the date of filing the suit
- 3.Claimant entitled to a Certificate of Service pursuant to section 51(2) of the Employment Act
- 4.Order as to costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (employment relationship dispute)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Makomo v National Council, Young Men Christian Association, Kenya (Cause 1813 of 2016) [2022] KEELRC 1627 (KLR)", Case Analysis (2022). Cause No 1813 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1627/eng@2022-05-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.