Makhanu v PG Security Limited (Cause 191 of 2018) [2023] KEELRC 516 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the employment contract was void for fraud (forged KCPE certificate)
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
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.
Whether the Claimant was underpaid
Yes, as pleaded to the tune of Kshs 286,237.82 measured against Legal Notices 117/2015 and 112/2017
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.
Overtime, ofi duty and public holidays pay
Not awarded for want of proof of clocking records
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.
Legal principles established
#- 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
#- 1.Leave pay for the last year of service of Kshs 11,424
- 2.Payment of December 2016 salary of Kshs 11,623.17
- 3.Underpayment of Kshs 286,237.82
- 4.Total award of Kshs 309,284.99 less statutory deductions
- 5.Respondent to pay costs of the suit plus interest at court rates from the date of judgment
- Jurisdiction invoked
- Original Employment and Labour Relations Court jurisdiction over a memorandum of claim for terminal dues (Employment Act, Labour Institutions Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.