Ogembo & 5 others v SGA Security Solutions Limited (Appeal E094, E091, E092, E093, E095 & E096 of 2023 (Consolidated)) [2024] KEELRC 397 (KLR)
The bottom line
#Kenya's Employment Court confirmed that old employment benefit claims expire under Section 90, but employees keep the right to refuse worse contract terms.
What this practically means
#Executive summary
#Key legal issues
#Limitation of employment claims under Section 90 of the Employment Act
Claims for overtime, holidays, annual leave, leave travelling allowance, weekend compensation and house allowance accruing during the 2009–2016 casual employment were time barred; they should have been claimed as continuing injuries within 12 months or before lapse of 3 years
The court held that oral employment is lawful and carries rights which must be claimed as and when due. Upon issuance of a written contract on 1 October 2016, the casual regime ceased and Sections 9 and 10 applied. Claims from the casual period therefore should have been pursued as continuing injuries or within three years, and the learned magistrate correctly found them time barred.
Affirmation of the finding of unfair termination and assessment of dues
The trial court's finding of unfair termination and the awards for notice pay, 10 months' compensation, service pay/gratuity and certificate of service were affirmed
Although the respondent's handling of the redeployment and terminal dues was flawed, the magistrate properly found unfair termination. Compensation and notice pay were discretionary and not shown to have been applied non-judicially. Service pay was properly analysed under Section 35(5) and (6) given NSSF, NHIF and pension contributions, and the certificate of service complied with Section 51.
Distinguishing authorities relied on by the appellant
The appellant's authorities on continuing injuries were distinguishable because they concerned ongoing contracts, whereas the appellant's claims arose under a terminated casual regime
The court distinguished Johnson Kazungu and John Kiiru Njiiri, noting they involved ongoing contracts within which benefits accrued, unlike the appellant whose unpaid dues arose under a different employment regime ending with the written contract of 1 October 2016.
Legal principles established
#- A first appellate court may re-evaluate the entire evidence and arrive at its own conclusions, bearing in mind it did not see or hear the witnesses
- Accrued employment benefits under oral/casual employment must be claimed as continuing injuries within 12 months or within 3 years under Section 90, and cease with conversion to written terms
- An employee is entitled to refuse a new contract with lesser terms; consent is necessary under Section 10(5) of the Employment Act
Court orders
#- 1.The findings in the judgment apply to all the consolidated appeals (E091, E092, E093, E095 and E096 of 2023)
- 2.The judgment of the learned magistrate is confirmed on its terms and awards
- 3.The appeal is dismissed as without merit
- 4.Each party to bear own costs of this appeal
- On appeal from
- Principal Magistrate's Court, Kwale (ELRC)
- Kwale CM ELRC No. E023 of 2021 (with E020, E022, E024 and E025 of 2021)
- Jurisdiction invoked
- First appeal from the magistrate's court under employment law (Employment and Labour Relations Court appellate jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ogembo & 5 others v SGA Security Solutions Limited (Appeal E094, E091, E092, E093, E095 & E096 of 2023 (Consolidated)) [2024] KEELRC 397 (KLR)", Case Analysis (2024). ELRC Appeal No. E094 of 2023 (consolidated with E091, E092, E093, E095 and E096 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/397/eng@2024-02-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.