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ELRCPartially AllowedCause No 760 of 2018· [2023] KEELRC 441 (KLR)

Omwenga v Collindale Security Limited (Cause 760 of 2018) [2023] KEELRC 441 (KLR)

Employment and Labour Relations Court
21 February 2023
2,980 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan security guard won his underpayment claim but lost overtime and service pay because he couldn't prove he was a night guard.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a security guard from 6th March 2012 until his voluntary resignation on 28th September 2017, sued for underpayment of Kshs.288,185.91, overtime of Kshs.552,102.89, service pay of Kshs.51,896.25, a certificate of service, costs and interest. He alleged he was a night guard paid below the Regulation of Wages (General) Orders and that he signed a clearance certificate without reading it, leaving dues unpaid. The Respondent denied the claims, producing a 2012 contract showing the Claimant was a day shift reliever guard working 8 am to 5 pm, and argued NSSF membership barred service pay. The court framed a single issue: whether the Claimant was entitled to the reliefs sought. Applying Sections 107, 108 and 109 of the Evidence Act, the court found the Claimant failed to prove he was a night guard. However, it held that once employment was admitted, minimum wage applied regardless of day or night status, and that underpayment violates Article 41 fair labour practices. On RWI's admissions and payslips, the court found the Respondent underpaid the Claimant throughout employment but rejected the pleaded quantum as based on night-guard rates. The overtime claim failed for want of evidence; service pay was barred by Section 35(6)(d) of the Employment Act as the Claimant was an NSSF member; and the certificate of service had already been issued under Section 51. The clearance certificate did not waive the Claimant's right to sue for accrued entitlements. Judgment was entered for the underpayment, to be computed by counsel under the operative Wage Orders and filed within 30 days, with 50% costs and interest from adoption of the computation.

Key legal issues

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01

Whether the Claimant was a night guard entitled to night-guard minimum wage

Holding

Claimant failed to prove he was a night guard; contract he signed showed he was a day shift reliever guard working 8 am to 5 pm

Reasoning

The Claimant admitted the contract existed in his employer's file; the Respondent produced a signed letter of employment designating him a day guard, which he did not disown. He adduced no evidence of any change of status. Applying Sections 107, 108 and 109 of the Evidence Act, the burden of proof lay on him and was not discharged.

p. 5
02

Whether the Claimant was underpaid contrary to the Regulation of Wages (General) Orders

Holding

Yes - the Respondent underpaid the Claimant throughout his employment, but the shortfall must be computed on day-guard minimum wages, not night-guard rates

Reasoning

RWI admitted underpayments of Kshs.86 per month up to April 2012 and larger shortfalls thereafter against prescribed minimums. The court held minimum wage applies to any guard once employment is admitted, as an incident of Article 41 fair labour practices. Only the quantum claimed (based on night-guard rates) was rejected.

p. 6
03

Whether the Claimant was entitled to overtime pay

Holding

No - the claim was dismissed as unsupported by evidence

Reasoning

The signed contract provided for 8 am to 5 pm work and was not challenged as vitiated. Having found the Claimant a day guard, no evidence established extra hours. The Claimant bore the burden of proving overtime under Sections 107 and 108 of the Evidence Act.

p. 6
04

Whether the Claimant was entitled to service pay

Holding

No - disqualified as an NSSF contributor under Section 35(6)(d) of the Employment Act

Reasoning

Documentary evidence and RWI's testimony showed NSSF contributions were deducted and remitted, including from the Claimant's payslips. Section 35(6)(d) disqualifies NSSF members from service pay. The prayer was disallowed.

p. 6
05

Whether signing the clearance certificate barred the suit

Holding

No - the certificate did not waive the Claimant's right to sue for other entitlements, though his allegation of signing unread was unsubstantiated

Reasoning

At common law signature means acceptance absent pleaded coercion, fraud, undue influence or misrepresentation, none of which was alleged. However, relying on Coastal Bottlers Ltd v Kimathi Mithika, the certificate did not waive accrued statutory entitlements.

p. 5

Legal principles established

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  • He who alleges must prove; the burden lies on the claimant to establish the pleaded terms of employment
  • Once an employer admits employment, it is immaterial whether the employee was a day or night guard for purposes of the minimum wage; underpayment violates Article 41 fair labour practices
  • A clearance certificate does not waive an employee's right to sue for other entitlements
  • A party who signs a document without alleging vitiating factors is bound by it at common law
  • Employees who are NSSF members are disqualified from service pay under Section 35(6)(d) of the Employment Act
  • A claimant who resigns voluntarily without pleading constructive dismissal cannot access reliefs attendant to unlawful termination beyond accrued rights

Court orders

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  1. 1.Judgment entered for the Claimant for outstanding underpayment from date of employment till the date of resignation on 28th September, 2017, to be computed by counsel for the parties based on basic pay and the operative Regulation of Wages (General) Orders, 2011, 2012, 2013, 2015 and 2017, with the agreed computation to be filed for adoption by the court within 30 days
  2. 2.Claimant awarded 50% of the costs in light of partial success
  3. 3.Interest at court rates from date of adoption of the computation till payment in full

Authorities

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Legislation

  • Regulation of Wages (General) Amendment Orders2011, 2012, 2013, 2015 and 2017
  • Labour Relations ActSection 48(2)
  • Employment Act, 2007Section 35(6)(d)
  • Employment Act, 2007Section 51
  • Evidence ActSections 107, 108 and 109
  • Constitution of Kenya, 2010Article 41
  • Constitution of Kenya, 2010Articles 159(2)(d) and 48
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (11)

  • Kathra Hussein Noor & another v Kaderdina Hajee Essak Ltd
    [2016] eKLR
  • Evans Katiezo Aligiulah v Eldomatt Wholesale & Supermarket Ltd
    [2016] eKLR
  • Next Generation Communication Ltd v George M. Kirangaru
    [2019] eKLR
  • Protus Wanjala Mukite v Anglo African Properties t/a Jambo Mutara Lodge Laikipia
    (2021) eKLR
  • Margaret Njeri Muiruri v Bank of Baroda (Kenya) Ltd
    [2014] eKLR
  • National Bank of Kenya Ltd v Pipelastic (K) Ltd and another
    [2001] eKLR
  • World Explorers Safaris Ltd v Cosmopolitan Travel Ltd & another
    [2021] eKLR
  • Edwin Beiti Kipchumba v National Bank of Kenya Ltd
    [2018] eKLR
  • Herbert Wafula Waswa v Kenya Wildlife Services Ltd
    [2020] eKLR
  • Lestrange v Graucob
    [1934] 2 K.B. 394
  • Coastal Bottlers Ltd v Kimathi Mithika
    [2016] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under Article 41 of the Constitution of Kenya, 2010 (fair labour practices); Employment Act, 2007; Labour Relations 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, "Omwenga v Collindale Security Limited (Cause 760 of 2018) [2023] KEELRC 441 (KLR)", Case Analysis (2023). Cause No 760 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/441/eng@2023-02-21

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