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ELRCPartially AllowedNot stated in the judgment as provided· [2023] KEELRC 283 (KLR)

Muthami v Intersecurity Services Ltd (Employment and Labour Relations Cause 2172 of 2015) [2023] KEELRC 283 (KLR)

Employment and Labour Relations Court
6 February 2023
2,805 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, employed as a guard from March 2003 until his voluntary resignation on July 31, 2014, sued the Respondent alleging withholding of his dues, seeking declarations and payment of underpayment, leave, service pay, overtime and related dues totalling about Kshs 566,231, on a net monthly salary of Kshs 10,475.07. The Respondent denied owing any dues, asserting all sums were paid on resignation. The court framed a single issue: whether the Claimant was entitled to the reliefs sought. It found that although RWI asserted dues were computed and paid, no documentary evidence of payment was produced, and the Respondent ignored the union's demand of October 16, 2014 and the Ministry of Labour's letter of December 15, 2014. The court therefore held the Respondent failed on a balance of probabilities to prove payment other than the July 2014 salary. It endorsed Mbaru J's sentiments in Jason Mogaka Otiso v Shadrack Obuga Mukanda on the inhumanity of non-payment of wages. On quantum, the court presumed the Claimant was a night guard and found underpayment of Kshs 859.70 monthly from May 1, 2013 against the prescribed minimum wage, awarding underpayment for 3 years only, to be computed by counsel and filed for adoption, consistent with Section 90 of the Employment Act. Leave pay was awarded for 3 years. Claims for overtime and rest days failed for want of particulars, and service pay was disallowed because the Claimant was an NSSF member under Section 35(6)(d). Judgment was entered accordingly with costs and interest from the date of judgment.

Key legal issues

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01

Whether the Respondent proved payment of the Claimant's dues upon separation

Holding

The Respondent failed to prove it computed and paid the dues; only the July 2014 salary was shown to have been paid.

Reasoning

RWI confirmed on cross-examination that the Respondent computed and paid the dues but produced no documentary evidence of particulars or payment. The Respondent also ignored the union's demand letter of October 16, 2014 and the Ministry of Labour letter of December 15, 2014. The court therefore found the Respondent had failed on a balance of probabilities to prove payment other than the July 2014 salary.

p. 5
02

Whether the Claimant was underpaid and for what period

Holding

The Claimant was shown to be underpaid from May 1, 2013 against the prescribed minimum wage for a night guard; recovery limited to 3 years.

Reasoning

The court presumed the Claimant was a night guard as neither party gave evidence on this. His salary of Kshs 10,052 fell below the prescribed minimum of Kshs 10,911.70 for a night guard, an underpayment of Kshs 859.70 monthly from May 1, 2013. Regulation of Wages Orders are accessible to the court and underpayment is discernible perusal of the law. Recovery was limited to 3 years under Section 90 of the Employment Act.

p. 5
03

Entitlement to overtime, rest days and leave pay

Holding

Overtime and rest-day claims failed for want of particulars; leave pay awarded for 3 years.

Reasoning

The Claimant's payslip showed overtime payments and he led no evidence of hours, reporting and exit times or work schedule. He had one day off weekly, consistent with Section 27(2) of the Employment Act. Though he did not proceed on annual leave for the duration of employment, leave pay was awarded for 3 years only.

p. 7
04

Entitlement to service pay

Holding

Service pay disallowed as the Claimant was an NSSF member.

Reasoning

The Claimant confirmed membership of NSSF and that the Respondent remitted contributions, evidenced by his payslip. Section 35(6)(d) of the Employment Act excludes NSSF members from service pay under Section 35(5).

p. 7

Legal principles established

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  • An employer alleging payment of dues bears the evidential burden of proving computation and payment; failure leaves it unable to displace the claim on a balance of probabilities.
  • Employment claims for dues are recoverable only for a period of up to 3 years under Section 90 of the Employment Act.
  • Service pay is not payable to an employee who is a member of the NSSF.

Court orders

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  1. 1.Underpayment for the last 3 years served to be computed by counsel for both parties and filed for adoption by the court
  2. 2.Leave pay for 3 years
  3. 3.Costs of this suit to the Claimant
  4. 4.Interest at court rates from date of judgment till payment in full

Authorities

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Legislation

  • Employment ActSections 5, 17, 18
  • Employment Act, 2007Section 90
  • Employment ActSection 35(5), 35(6), 35(6)(d)
  • Employment ActSection 27(2)
  • Regulation of Wages (General) Orders2010, 2011, 2012, 2013
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d), Article 48

Cases cited (6)

  • Naftali Mogaka Nyaboga V Kisii County Government & another
    (2022) eKLR
  • Jason Mogaka Otiso V Shadrack Obuga Mukanda
    (2016) eKLR
  • Isaiah Gathogo Kamau V Board of Management St Antony Schools & another
    (2021) eKLR
  • Wycliffe Juma Ilukol V Board of Management Father Okodui Secondary School
    (2022) eKLR
  • Jane Achieng & another V University of Nairobi
    (2015) eKLR
  • Stephen Miheso V Kaimosi Tea Estate Ltd
    (2014) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007

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, "Muthami v Intersecurity Services Ltd (Employment and Labour Relations Cause 2172 of 2015) [2023] KEELRC 283 (KLR)", Case Analysis (2023). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/283/eng@2023-02-06

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