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ELRCPartially AllowedMemorandum of Appeal dated 10th January 2023 (ELRC Appeal, Nyeri)· [2023] KEELRC 2266 (KLR)

Batian Security Company Ltd v Gatinya (Employment and Labour Relations Appeal E001 of 2023) [2023] KEELRC 2266 (KLR)

Employment and Labour Relations Court
29 September 2023
3,181 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This is a first appeal to the Employment and Labour Relations Court at Nyeri (Onesmus N Makau, J) against a judgment of 13th December 2022 by Hon. E. Kanyiri (PM) awarding a retired watchman terminal dues: Kshs.184,572.00 salary underpayment, Kshs.6,317.10 house allowance, Kshs.28,744.48 leave allowance and Kshs.131,139.00 overtime. The employer appealed on four grounds. The court, guided by the duty on a first appeal to re-evaluate evidence (citing Sanitam (EA) Ltd v Rentokil), found the underpayment award unsupported because the respondent's station fell under 'All other Areas' in the General Wages Order, and set it aside. The house allowance award was set aside because the muster rolls showed a gross consolidated salary. The overtime award was set aside because the claim lacked pleaded particulars, was contradicted by leave forms, and the trial court had shifted the burden of proof to the employer contrary to the rule that he who alleges must prove. The leave award was varied: enhanced to 48 days but recalculated at Kshs.8,400, yielding Kshs.13,440.00. Invoking Order 42 Rule 32, the court awarded service pay of Kshs.51,816.00 for 12 years, which the trial court had failed to award despite it being admitted in the defence. Judgment was entered for Kshs.65,256.00 less Kshs.24,364.00 paid, net Kshs.40,892.00, subject to statutory deductions, with interest from the date of filing the appeal. Each party was directed to bear their own costs both in the appeal and below. The appeal was allowed to the extent indicated.

Key legal issues

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01

Salary underpayment

Holding

Award set aside entirely

Reasoning

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.

p. 4
02

House allowance

Holding

Award set aside

Reasoning

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.

p. 4
03

Leave allowance

Holding

Enhanced from Kshs.28,744.48 to Kshs.13,440.00 based on 48 days at Kshs.8,400.00

Reasoning

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.

04

Overtime pay

Holding

Award set aside entirely

Reasoning

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.

05

Service pay

Holding

Awarded at Kshs.51,816.00 for 12 years

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 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. 2.Enhancing leave award from 43 to 48 days at salary of Kshs.8,400.00, i.e. Kshs.13,440.00
  3. 3.Awarding service pay of Kshs.51,816.00 (Kshs.8,636 x 12 x 15/30) under Order 42 Rule 32
  4. 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. 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

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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, "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.