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ELRCPartially AllowedPetition No E094 of 2022· [2023] KEELRC 2651 (KLR)

Owino v Radiant Power System Limited (Petition E094 of 2022) [2023] KEELRC 2651 (KLR)

Employment and Labour Relations Court
27 October 2023
3,421 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court awarded an electrician only Kshs 9,339, rejecting discrimination and unfair termination claims because he couldn't prove his case properly.

What this practically means

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Executive summary

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The Petitioner, employed by the Respondent from September 2015 as an electrical technician on annual contracts, petitioned the Employment and Labour Relations Court claiming he was unlawfully terminated and discriminated against on salary. He alleged he was promoted to site supervisor in 2018 but paid Kshs 16,078 monthly while fellow site supervisors earned between Kshs 23,478 and Kshs 48,443, in breach of Articles 27, 35(1)(b) and 41(1) of the Constitution and Section 5 of the Employment Act. He sought 12 months' salary for unfair termination, salary underpayment and unpaid house allowance computed over 80 months using the 2018 Wage Order, refund of a Kshs 9,339 deduction, compensation for constitutional violations, costs and interest. The Respondent maintained he was never a supervisor, that his salary was consensual, and that he was lawfully dismissed after being caught loading the Respondent's conduit pipes into an unauthorized vehicle at the Muthithi site. The court held the Petitioner's contracts subjected him to supervision by a foreman and there was no promotion letter, so the named supervisors were not proper comparators; a pay slip was not conclusive evidence of comparable terms. The underpayment claim failed because the Petitioner applied one Wage Order across the entire service period instead of citing each year's applicable Wage Order. Termination was on valid ground under Section 43 of the Employment Act and after a fair hearing, and no constitutional violation arose. Only the Kshs 9,339 deduction, made for days the Petitioner was on suspension, was found unlawful. The court ordered payment of Kshs 9,339 in full and final settlement, made no order on costs, and allowed interest at court rate from the date of judgment.

Key legal issues

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01

Whether the Petitioner was a site supervisor/foreman entitled to equal pay with other supervisors

Holding

The claim for salary discrimination failed; the Petitioner remained a technician and the other supervisors were not proper comparators.

Reasoning

The Petitioner's contracts, including the last ones, subjected him to the supervision of a manager/supervisor/foreman. There was no letter of promotion. The named supervisors did not place their contracts before the court, so a pay slip alone could not establish comparable roles. Comparing his salary to theirs was therefore misplaced.

p. 5
02

Whether the Petitioner was underpaid against statutory minimum wage

Holding

The underpayment claim failed because it applied a single 2018 Wage Order across the entire period of service.

Reasoning

Different Wage Orders applied over the years of service. The Petitioner was required to cite the different applicable Wage Orders for each year in his pleading, documentation and evidence. He did not, and the court would not undertake the computation itself. No contemporaneous complaint of underpayment was made before filing the Petition.

p. 6
03

Whether termination was on valid grounds and after fair procedure

Holding

Termination was on valid ground under Section 43 of the Employment Act and the process was fair.

Reasoning

The security guard captured the Petitioner loading conduit pipes into an unauthorized vehicle, corroborated by the security investigator's affidavit. The Petitioner was charged, heard, allowed to call a witness, and dismissed. His WhatsApp messages showed he was ready to move on. No constitutional violation arose.

p. 6
04

Whether the deduction of Kshs 9,339 from terminal dues was lawful

Holding

The deduction was unlawful and the sum must be repaid.

Reasoning

The deduction was made for 12 days of alleged absence without leave. The WhatsApp communications showed the Petitioner was suspended by the Respondent's Director pending the disciplinary process, not absent without lawful cause, so the days should not have been deducted.

p. 7

Legal principles established

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  • A claim of salary discrimination on equal pay for work of equal value requires that the comparators be shown to hold the same position; a pay slip is not conclusive evidence of full terms and conditions of employment.
  • An employee claiming underpayment of salary must plead and prove the applicable Wage Orders for each year of service; the court is not obliged to conduct that exercise.

Court orders

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  1. 1.The Respondent shall pay to the Petitioner the sum of Kshs 9,339 in full and final settlement of this Petition
  2. 2.No order on the costs
  3. 3.Interest allowed at court rate, from the date of Judgment, till payment is made in full

Authorities

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Legislation

  • Constitution of KenyaArticle 27(1), (2) and (5)
  • Constitution of KenyaArticle 35(1)(b)
  • Constitution of KenyaArticle 41(1)
  • Employment ActSection 5(2)(3)
  • Employment ActSection 43
  • Regulation of Wages (General) (Amendment) Order, 2018minimum wage for electrician, artisan grade 1
  • Electronic Case Management Practice Directions, 2020Practice Direction 6(2)
Jurisdiction invoked
Employment and labour relations dispute brought as a Petition for violation of constitutional rights under Articles 27(1), (2) and (5), 35(1)(b) and 41(1) of the Constitution and Section 5(2)(3) of the Employment Act

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, "Owino v Radiant Power System Limited (Petition E094 of 2022) [2023] KEELRC 2651 (KLR)", Case Analysis (2023). Petition No E094 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2651/eng@2023-10-27

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.