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ELRCPartially AllowedNakuru CMELRC Appeal (Cause No. E124 of 2021 referred to as the decision appealed from)· [2024] KEELRC 112 (KLR)

Togom v Radar Limited (Employment and Labour Relations Appeal E003 of 2023) [2024] KEELRC 112 (KLR)

Employment and Labour Relations Court
1 February 2024
HWHellen Wasilwa
5,348 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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A Kenyan night guard won overtime and holiday pay on appeal, but lost leave, off-day and underpayment claims for lack of evidence and time limits.

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 Nakuru against the decision of Hon. E.S. Soita in Nakuru CMELRC Cause No. E124 of 2021, delivered on 17th February 2021, in which part of a night guard's claims against Radar Limited had succeeded. The appellant, employed from 1st March 2011 as a night guard until termination in December 2019, challenged the trial court's refusal or partial award of leave pay, overtime, off-duty days pay, public holidays pay, underpayment, statutory deductions and enhancement of compensation to twelve months. The appeal was canvassed by written submissions. The court, re-evaluating the evidence as a first appellate court, declined to disturb the trial court on leave, holding that leave must be applied for, that there was no evidence of a request having been denied, and that claims predating the limitation period were time barred. However, finding that the claimant's 12-hour shifts were uncontested and that the respondent had not proved its assertion of a fixed monthly overtime payment of Kshs. 2,539, the court computed overtime of 2,592 hours (108 days' pay) for the three years before suit, awarding Kshs. 75,576.24. It also awarded holiday pay of Kshs. 25,659 for 11 public holidays a year over three years, since the respondent produced no proof of payment. The claims for off-duty days, underpayment (actual pay exceeded the statutory minimum wage of Kshs. 13,572.90), and enhancement of compensation were rejected. The total addition to the award of Kshs. 101,235 was made subject to statutory deductions, and each party was ordered to bear its own costs.

Key legal issues

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01

Entitlement to leave pay for the full period of service

Holding

Leave claim fails beyond the non-time-barred period; leave must be applied for and the claimant did not demonstrate he sought leave and was denied

Reasoning

The court relied on ILO Convention No. 132, which requires consultation between employer and employee on the timing of leave, so an employee must notify the employer of intention to take leave. There was no evidence the claimant applied for leave and was refused. Additionally, the claim was filed in March 2021, so leave accrued before March 2018 was time barred.

p. 9
02

Overtime pay for a night guard working 12-hour shifts

Holding

Overtime payable at 4 hours daily for 6 days a week, computed over the three-year period before suit (2,592 hours = 108 days' pay = Kshs. 75,576.24)

Reasoning

The claimant's evidence of working 12 hours daily was not contested, and the court took judicial notice of the 12-hour security guard shift. The respondent asserted a fixed monthly overtime payment of Kshs. 2,539 but produced no evidence to prove it. The court therefore computed 4 hours' overtime per day over six days weekly, limited to the three years preceding filing to avoid limitation.

p. 9
03

Payment for public holidays worked

Holding

Claimant entitled to holiday pay of 11 days per year under the Public Holiday Act for 3 years, totalling Kshs. 25,659

Reasoning

The trial court had failed to consider this prayer. Under the Public Holiday Act Cap 110 there are 11 holidays the claimant may have qualified for. The respondent averred the claimant was paid for holidays but produced no evidence to establish payment, so the court found the claimant entitled to 11 days' pay for three years.

p. 10
04

Off-duty days pay

Holding

Claim declined as untenable

Reasoning

The court held it was not credible that a human being worked continuously for 10 years without a single off day, rejecting the appellant's submission on grounds of reason and common sense rather than evidential analysis.

p. 10
05

Underpayment of salary

Holding

Claim fails; the claimant's gross pay exceeded the applicable minimum wage

Reasoning

The claimant's gross salary at exit was Kshs. 23,326 while the Regulation of Wages (General) Amendment Order of 2019 fixed a security guard's gross pay at Kshs. 13,572.90. Since actual pay exceeded the statutory minimum, no underpayment was established.

p. 10

Legal principles established

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  • An employee must apply for or give notice of intention to take leave; leave pay for unapplied-for leave does not accrue automatically
  • On a first appeal the court re-evaluates the evidence on record
  • Judicial notice may be taken of the standard 12-hour shift worked by security guards in Kenya

Court orders

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  1. 1.Overtime award of Kshs. 75,576.24 for the period 25th November 2018 to November 2021 (2,592 hours computed as 108 days' pay)
  2. 2.Holiday pay of Kshs. 25,659 being 11 days' pay at Kshs. 8,553 per year for 3 years
  3. 3.Total addition to the trial court award of Kshs. 101,235 subject to statutory deductions
  4. 4.The rest of the appeal dismissed
  5. 5.Each party to bear their own costs

Authorities

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Legislation

  • Employment Actsection 10(7)
  • Employment Actsection 27(2)
  • Employment Act 2007section 28 and section 28(4)
  • Employment Actsection 26
  • Employment Act, 2007sections 45, 49(1)(c), 40, 35(5) (as cited in Erick Odhiambo Owade quotation)
  • Labour Institutions Actsection 48
  • Public Holiday Act Cap 110 LOKNot specified (11 holidays)
  • Regulation of Wages (General) Amendment Order of 2019Minimum wage for a Security Guard
  • Evidence Actsection 107
  • Civil Procedure Actsection 27
  • ILO Convention 132 - Holiday with Pay Convention (revised), 1970 (No.132)Article 10

Cases cited (12)

  • Luka Mbuvi v Economic Industries Limited
    [2020] eKLR
  • Radar Limited v Daniel Jomo Machari
    [2022] eKLR
  • Erick Odhiambo Owade & 2 others v Professional Clean Care Limited
    [2018] eKLR
  • Nginda v Ready Consultancy Limited
    [2022] KECA 577 KLR
  • Cecilia Karuru Ngayu v Barclays Bank of Kenya Limited and another
    Nyeri High Court Case No. 17 of 2014
  • Rogoli Ole Manadiegi v General Cargo Services Limited
    [2016] eKLR
  • KUDHEIHA Workers v Charles Waithaka Goka t/a Apple Bees Pub and Restaurant
    [2013] eKLR
  • Charles Nguma Maina v Riley Services Limited
    [2018] eKLR
  • Fred Makori Ondari v The Management of the Ministry of works Sports Club
    [2013] eKLR
  • Patrick Lumumba Kimuyu v Prime Fuels (K) Limited
    [2018] eKLR
  • Republic v Chairman, Public Procument Adminstrative Review Board & Another
    [2014] eKLR
  • Samuel Omutoko Mabinda v Riley Services Limited
    [2019] eKLR
On appeal from
Chief Magistrate's Court (ELRC), Nakuru
Nakuru CMELRC Cause No. E124 of 2021
Jurisdiction invoked
First appeal from the subordinate court (ELRC appellate jurisdiction); the judgment does not cite the specific statutory provision

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Togom v Radar Limited (Employment and Labour Relations Appeal E003 of 2023) [2024] KEELRC 112 (KLR)", Case Analysis (2024). Nakuru CMELRC Appeal (Cause No. E124 of 2021 referred to as the decision appealed from). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/112/eng@2024-02-01

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