Batian Security Company Ltd v Gatinya (Employment and Labour Relations Appeal E001 of 2023) [2023] KEELRC 2266 (KLR)
The bottom line
#Kenya's ELRC slashed a watchman's terminal dues award to Kshs.40,892 after ruling overtime and underpayment claims must be proved by the employee, not disproved by the employer.
What this practically means
#Executive summary
#Key legal issues
#Salary underpayment
Award set aside entirely
The trial court's conclusion that the applicable minimum wage was Kshs.14,038.00 ignored the defence evidence that the respondent worked at Mukurwe-ini, an 'All other Areas' locality attracting the lowest scale under the General Wages Order. The respondent adduced no countervailing evidence, so the finding lacked evidential and pleadings support and was set aside.
House allowance
Award set aside
The muster rolls produced by the appellant showed the salary paid was gross pay which included house allowance. The trial court considered only section 31 of the Employment Act and ignored this material evidence; had it considered the muster rolls it would have reached a different decision.
Leave allowance
Enhanced from Kshs.28,744.48 to Kshs.13,440.00 based on 48 days at Kshs.8,400.00
Leave forms showed 24 leave days per year entitlement; for 2019 and 2020 the court should have awarded 48 days, not 43, and should have used the correct wage of Kshs.8,400.00 prescribed by the 2018 General Wage Order rather than Kshs.7,240.95. Using Order 42 Rule 32 the court recalculated: Kshs.8,400 x 48/30 = Kshs.13,440.00.
Overtime pay
Award set aside entirely
The respondent did not plead particulars of the overtime claim and his written statement was contradicted by leave forms showing he took leave and off days. The trial court's finding that the employer failed to prove normal working hours shifted the burden of proof to the wrong party; a claimant cannot be awarded relief merely because the employer defaulted to rebut zero evidence.
Service pay
Awarded at Kshs.51,816.00 for 12 years
The defence expressly admitted entitlement to service pay and there was no evidence it was paid. The trial court conspicuously made no finding on it. Exercising Order 42 Rule 32 powers, the court calculated 12 years' service: Kshs.8,636 x 12 x 15/30 = Kshs.51,816.00.
Legal principles established
#- On a first appeal the court is obliged to reconsider and re-evaluate the evidence and draw its own independent conclusions
- He who alleges must prove; an employer cannot be required to rebut zero evidence of overtime
- Overtime claims must be pleaded with particulars such as dates, months or years worked
- Under Order 42 Rule 32 the appellate court may pass any decree which ought to have been passed, including in favour of a respondent who did not appeal
Court orders
#- 1.Setting aside the awards of salary underpayment (Kshs.184,572.00), house allowance (Kshs.6,317.10) and overtime (Kshs.131,139.00) entirely
- 2.Enhancing leave award from 43 to 48 days at salary of Kshs.8,400.00, i.e. Kshs.13,440.00
- 3.Awarding service pay of Kshs.51,816.00 (Kshs.8,636 x 12 x 15/30) under Order 42 Rule 32
- 4.Entering judgment for a total of Kshs.65,256.00 less Kshs.24,364.00 paid, net due Kshs.40,892.00, subject to statutory deductions and plus interest at court rates from the date of filing the appeal
- 5.Directing that each party shall bear their own costs both here and in the court below
- On appeal from
- Magistrates' Court (ELRC trial court, Nyeri)
- not stated
- Jurisdiction invoked
- First appeal under Order 42 Rule 32 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Batian Security Company Ltd v Gatinya (Employment and Labour Relations Appeal E001 of 2023) [2023] KEELRC 2266 (KLR)", Case Analysis (2023). Memorandum of Appeal dated 10th January 2023 (ELRC Appeal, Nyeri). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2266/eng@2023-09-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.