JRS Group Ltd v Bwana (Appeal E044 of 2022) [2023] KEELRC 2489 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Award of overtime to security guards
The award of overtime was justified; security guards ordinarily work 3 hours' overtime daily on 12-hour shifts, and the employer, having failed to produce attendance records, could not rebut the claim.
The Regulation of Wages (Protective Security) Services Order prescribes 52 hours over 6 days. Security guards on 12-hour shifts work 3 hours' overtime daily. The employer must keep attendance records and did not produce any to show the Respondent was compensated for overtime or to rebut bank statements showing underpayment. The Court found no error of law or fact, though limitation under section 90 of the Employment Act may have caught part of the claim.
House allowance despite provided housing
The award of house allowance was correct; the Protective Security Services Order requires payment of some housing allowance even where housing is provided, and the Appellant's witness's admission of underpayment bound it.
Regulation 5 of the Order still expects an employer who provides housing to pay some housing allowance. Further, the Appellant's witness admitted the Respondent was underpaid, and the employer could not resile from that admission. The Court therefore found no error in the trial Magistrate's award of house allowance.
Leave allowance
While an employee is entitled to at least 21 days' annual leave, leave accumulation requires the employer's approval under section 28(4) of the Employment Act; absent approval, only commuted leave for 18 months before separation (one and a half months' basic pay) is payable.
Section 28(4) of the Employment Act circumscribes how many leave days can be carried forward. The Respondent did not show he accumulated leave from 2017 with the Appellant's approval, so his entitlement was limited to accrued commuted leave for the 18 months before separation, equivalent to one and a half months' basic pay.
Underpayments below the prescribed minimum wage
The award of Kshs 155,153/95 as underpayments was upheld, based on the Appellant's witness's concession that the Respondent was paid below the prescribed minimum wage and the various Regulation of Wages (Amendment) Orders.
During the hearing the Appellant's witness conceded the Respondent was paid below the prescribed minimum wage. Considering that admission together with the various Regulation of Wages (Amendment) Orders covering 2017 to 2021, the Court found no error of principle, law or fact in the trial court's award of underpayments.
Legal principles established
#- A first appellate court must re-evaluate, re-assess and re-analyse the evidence on the record and determine whether the conclusions of the trial court should stand, giving reasons either way.
- Security guards under the Regulation of Wages (Protective Security) Services Order work 52 hours over 6 days; 12-hour shifts entail 3 hours' daily overtime, and the employer bears the burden of keeping attendance records to rebut overtime claims.
- Even where the employer provides housing, the Protective Security Services Order expects the employer to pay some housing allowance.
- Where accumulated leave is not carried forward with the employer's approval as required by section 28(4) of the Employment Act, the employee is eligible only for commuted leave accrued in the 18 months preceding separation.
Court orders
#- 1.The Appeal is dismissed with costs to the Respondent
- On appeal from
- Chief Magistrate's Court
- not stated
- Jurisdiction invoked
- First appellate jurisdiction of the Employment and Labour Relations Court over the Chief Magistrate's judgment (Memorandum of Appeal lodged 15 December 2022)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "JRS Group Ltd v Bwana (Appeal E044 of 2022) [2023] KEELRC 2489 (KLR)", Case Analysis (2023). Memorandum of Appeal lodged 15 December 2022 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2489/eng@2023-10-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.