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ELRCPartially AllowedEmployment and Labour Relations Court claim dated June 5, 2018 (number not stated in judgment)· [2023] KEELRC 516 (KLR)

Makhanu v PG Security Limited (Cause 191 of 2018) [2023] KEELRC 516 (KLR)

Employment and Labour Relations Court of Kenya
23 February 2023
3,681 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court awarded a former security guard over Kshs 309,000 in unpaid wages despite her employer's forgery accusations, but refused overtime because she had no attendance records.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent in June 2015 as a night guard and later as a day guard, resigned in February 2018 and sued for terminal dues, including arrears, underpayments, overtime, ofi duty pay, public holidays pay and leave pay. The Respondent denied the claim, asserting the Claimant was paid all dues on signing a clearance certificate, that she was guilty of misconduct, and counterclaimed for refund of all salary on the ground that her KCPE certificate was forged (as confirmed by KNEC), rendering the employment contract void for fraud. The Respondent relied on the ex turpi causa maxim and authorities on illegal contracts; the Claimant relied on Ndolo v Ndolo to argue forgery was not strictly proved. The court held that the matter was a resignation claim, so alleged misconduct was immaterial. It found the Claimant was a member of NSSF and thus not entitled to service pay. It declined overtime and ofi duty pay for want of clocking records and absence of any master roll. It awarded leave pay of Kshs 11,424, December 2016 salary of Kshs 11,623.17, and underpayments of Kshs 286,237.82 as measured against Legal Notices 117/2015 and 112/2017, totaling Kshs 309,284.99 less statutory deductions, with costs and interest to the Claimant. The forgery/counterclaim relief was not granted. Judgment delivered by Hellen Wasilwa, J, on February 23, 2023.

Key legal issues

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01

Whether the employment contract was void for fraud (forged KCPE certificate)

Holding

The court did not invalidate the contract; it treated the claim as one for terminal dues on resignation and did not enforce the Respondent's illegality theory

Reasoning

The Respondent argued, citing Mapis Investment and Kenya Airways v Satwant Singh Flora, that the contract was null and void as based on a forged certificate, and relied on Abdi Mohammed Daib. The court, however, framed the matter purely as a resignation claim for terminal dues and found that misconduct and the alleged fraud were not material, implicitly declining to apply the ex turpi causa doctrine to defeat the claim. The counterclaim was not allowed.

p. 7
02

Whether the Claimant was underpaid

Holding

Yes, as pleaded to the tune of Kshs 286,237.82 measured against Legal Notices 117/2015 and 112/2017

Reasoning

The court compared the salaries actually paid (Kshs 5,100 to 7,500) against the statutory minimum wages in the Legal Notices and found the Claimant was indeed underpaid, awarding the figure pleaded. The Claimant had argued the Respondent's own calculations wrongly excluded house allowance.

p. 7
03

Overtime, ofi duty and public holidays pay

Holding

Not awarded for want of proof of clocking records

Reasoning

The Claimant testified she worked 12 hours daily and on public holidays, but produced no documents of clock-in and clock-out times. No master roll was submitted. The court held it could not award anything on this prayer, although the arithmetic of the final award left an ambiguity as to whether an overtime figure was in fact included.

p. 7

Legal principles established

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  • A claim for terminal dues on resignation does not turn on whether the employee committed misconduct, as misconduct is material only to unlawful termination claims
  • The party alleging forgery bears the burden of proving it
  • Where an employer is custodian of attendance records and fails to produce them, the court will not award overtime on the employee's unsupported word

Court orders

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  1. 1.Leave pay for the last year of service of Kshs 11,424
  2. 2.Payment of December 2016 salary of Kshs 11,623.17
  3. 3.Underpayment of Kshs 286,237.82
  4. 4.Total award of Kshs 309,284.99 less statutory deductions
  5. 5.Respondent to pay costs of the suit plus interest at court rates from the date of judgment

Authorities

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Legislation

  • Employment ActSection 26
  • Labour Institutions ActSection 48
  • Evidence ActSection 107
  • Legal Notice No 117 of 2015 (minimum wage order)Minimum wage for night guard
  • Legal Notice No 112 of 2017 (minimum wage order)Minimum wage

Cases cited (5)

  • Ndolo V Ndolo
    [2008] 1 KLR (G&F) 742
  • Mapis Investment (K) Limited V Kenya Railways Corporation
    [2006] eKLR
  • Scott v. Brown, Doering, McNab & Co
    [1892] 2 QB 724
  • Kenya Airways Limited V Satwant Singh Flora
    [2013] eKLR
  • Abdi Mohammed Daib V Kenya Ports Authority
    [2016] eKLR
Jurisdiction invoked
Original Employment and Labour Relations Court jurisdiction over a memorandum of claim for terminal dues (Employment Act, Labour Institutions Act)

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, "Makhanu v PG Security Limited (Cause 191 of 2018) [2023] KEELRC 516 (KLR)", Case Analysis (2023). Employment and Labour Relations Court claim dated June 5, 2018 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/516/eng@2023-02-23

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