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ELRCPartially AllowedCause No 1813 of 2016· [2022] KEELRC 1627 (KLR)

Makomo v National Council, Young Men Christian Association, Kenya (Cause 1813 of 2016) [2022] KEELRC 1627 (KLR)

Employment and Labour Relations Court
27 May 2022
2,733 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The claimant, a gym instructor employed by the respondent on fixed-term contracts that ended in June 2016 when his last contract was not renewed, claimed unpaid salary for June 2016, an acting allowance for serving as gym manager, overtime pay, unpaid leave days, an account of NSSF and NHIF remittances, a certificate of service and costs. The respondent denied liability, alleging the claimant's negligence caused it a loss of Kshs 426,300/=, that it had paid the June 2016 salary and remitted statutory deductions, and that the claimant never acted as gym manager. After a full trial, the court framed a single issue: whether the claimant was entitled to the reliefs sought. On salary, the respondent produced no payment voucher for June 2016, and its letter of July 6, 2016 showed dues were being withheld pending the claimant paying Kshs 86,200/=; the court drew an adverse inference and awarded Kshs 24,717/=. The acting allowance claim failed for want of proof and for being time-barred under section 90 of the Employment Act. Although clause 6 of the contract permitting extra hours was held unenforceable as contrary to the Regulation of Wages (General Order), 1982, the overtime claim failed for lack of particulars, the court applying Rogoli Ole Manadiegi on the employee's burden. The NHIF/NSSF claim was declined as remittances were proved. Leave was awarded on a prorated statutory basis (3.5 days, Kshs 2,883.65), and a certificate of service was ordered. The claim was allowed in part: a total of Kshs 27,600.65 with interest at court rates from filing, plus costs.

Key legal issues

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01

Whether the respondent paid the claimant's salary for June 2016

Holding

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

Reasoning

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/=.

p. 3
02

Whether the claimant was entitled to an acting allowance as gym manager

Holding

Claim declined - not proved and time barred under section 90 of the Employment Act

Reasoning

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.

p. 4
03

Whether the claimant was entitled to overtime pay

Holding

Claim declined for lack of particulars despite the contractual clause permitting extra hours being found unenforceable

Reasoning

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.

p. 4
04

Whether the claimant was entitled to unpaid leave days

Holding

Allowed on a prorated statutory basis - 3.5 days (Kshs 2,883.65)

Reasoning

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.

p. 5
05

Whether the claimant was entitled to a certificate of service

Holding

Entitled pursuant to section 51(2) of the Employment Act as the employment relationship is not in dispute

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 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. 2.The said sum to attract interest at court rates from the date of filing the suit
  3. 3.Claimant entitled to a Certificate of Service pursuant to section 51(2) of the Employment Act
  4. 4.Order as to costs

Authorities

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Legislation

  • Evidence Actsection 112
  • Employment Actsection 10(7)
  • Employment Actsection 90
  • Employment Actsection 28(1)
  • Employment Actsection 51(2)
  • Civil Procedure RulesOrder 2 Rule 4(1)
  • Regulation of Wages (General Order)Regulation 5(1)
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (5)

  • Captain Harry Gandy vs Caspar Air Charters Ltd
    Civil Appeal No 7 of 1995
  • Patrick Peter Kithini vs Justus Mwongela
    (2020) eKLR
  • National Bank of Kenya Ltd vs Pipe Plastic Samkolit (K) Ltd & another
    (2001) KLR
  • Thomas Kobe and 114 others vs Kenya Ports Authority
    (2011) eKLR
  • Rogoli Ole Manadiegi vs General Cargo Services Limited
    (2016) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (employment relationship dispute)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.