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ELRCDismissedMemorandum of Appeal lodged 15 December 2022 (number not stated in judgment)· [2023] KEELRC 2489 (KLR)

JRS Group Ltd v Bwana (Appeal E044 of 2022) [2023] KEELRC 2489 (KLR)

Employment and Labour Relations Court
18 October 2023
849 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Employment and Labour Relations Court at Kisumu (Radido Stephen, J) dismissed an appeal by JRS Group Ltd against a Chief Magistrate's judgment in an employment claim. The Appellant advanced seven grounds, contending that the trial Magistrate had erred in failing to find the Respondent's case unproved, in awarding Kshs 535,800/- overtime for three and a half years despite distinct contracts, in awarding house allowance on wrong principles, and in awarding total damages of Kshs 798,426/15. Applying the first appellate court's duty to re-evaluate and re-analyse the evidence, the Court upheld all challenged awards. On overtime, it took judicial notice that security guards work 12-hour shifts, entailing 3 hours' daily overtime beyond the 52 hours prescribed by the Regulation of Wages (Protective Security) Services Order; the employer, obliged to keep attendance records, produced none to rebut the claim, though part of the award may have been caught by the section 90 limitation period. On house allowance, Regulation 5 of the Order requires payment even where housing is provided, and the Appellant's witness had admitted underpayment. On leave, the Court noted the award of Kshs 45,426/- for 2017-2021, observing that absent approved accumulation, entitlement would be limited to commuted leave for the 18 months before separation. On underpayments, the witness conceded payment below the prescribed minimum wage, grounding the Kshs 155,153/95 award. Finding no error of law or fact, the Court dismissed the appeal with costs.

Key legal issues

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01

Award of overtime to security guards

Holding

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.

Reasoning

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.

p. 2
02

House allowance despite provided housing

Holding

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.

Reasoning

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.

p. 2
03

Leave allowance

Holding

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.

Reasoning

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.

p. 3
04

Underpayments below the prescribed minimum wage

Holding

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.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The Appeal is dismissed with costs to the Respondent

Authorities

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Legislation

  • Regulation of Wages (Amendment) Ordergeneral (working hours in certain industries)
  • Regulation of Wages (Protective Security) Services Order52 hours over 6 days; Regulation 5 (housing allowance)
  • Employment Actsection 90 (limitation); section 28(4) (carry-forward of leave)

Cases cited (1)

  • Abok James Odera t/a A. J. Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates
    (2013) eKLR
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

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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, "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.