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ELRCDismissedMemorandum of Appeal dated 12th June, 2023· [2024] KEELRC 454 (KLR)

Mohamed v Malelu (Appeal E093 of 2022) [2024] KEELRC 454 (KLR)

Employment and Labour Relations Court
21 February 2024
DMD. K. NJAGI MARETE
970 words in judgment
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The bottom line

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A Kenyan court confirmed an employee's Kshs. 594,123 underpayment award even without specific wage orders, because the claim raised minimum wages on its face.

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 (D. K. Njagi Marete J) against the decision of Hon. G. Omodho (Mrs.) (PM) dated 30th May 2023 in MCELRC No. 1568 of 2021, in which the magistrate awarded the respondent (a former employee) Kshs. 594,123.60 for underpayment. The appellant (employer) advanced four grounds of appeal: that the respondent did not substantiate the underpayment claim with the relevant wage orders, did not establish the period of underpayment, that the magistrate wrongly applied Legal Notice No. 2 of 2018 (minimum wage for a house servant in Nairobi, Kshs. 13,572.90) uniformly across the whole 2013-2021 employment period, and that the magistrate failed to follow binding authority requiring proof of underpayment through the applicable legal notices. The appellant relied on Mohammed Ali Said v Simba Coach Limited and Geofrey Khisa Mukanda v El.Bari Security Services Limited. The respondent relied on Catherine Mbithe Maingi v Dilip Shah and on Jacob Ayiga Maruja v Simeon Obayo as cited in Joel Kiogora M'iringo, submitting that a court with sufficient material on record on earnings may rely on minimum wage guidelines or award a global sum. The court agreed with the respondent, holding that a court is at liberty to apply wage guidelines or any other material on record to do justice, that the magistrate acted prudently, and that paragraph 5 of the Memorandum of Claim raising minimum wages was adequate material. The appeal was dismissed with each party bearing their own costs.

Key legal issues

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01

Proof of underpayment claim without specific wage orders

Holding

The magistrate did not err; the plea for minimum wages in the Memorandum of Claim constituted adequate material for the determination

Reasoning

The court considered the authorities relied on by both sides. While the appellant argued the respondent had to furnish the applicable legal notices and computation, the court held that where there is sufficient material on record on which a trial court can make a finding on earnings, it is entitled to draw its own conclusion, including relying on minimum wage guidelines or awarding a global sum. Paragraph 5 of the Memorandum of Claim raised minimum wages, which was adequate material. The magistrate's reliance on Legal Notice No. 2 of 2018 was therefore prudent.

p. 3

Legal principles established

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  • A court may apply minimum wage guidelines or any other material on record to determine earnings where there is sufficient material, rather than faulting judicial officers who do justice on available material

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Each party bears their own costs of the appeal

Authorities

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Legislation

  • Employment ActSection 3(6)
  • Regulation of Wages (General) (Amendment) Order, 2018Legal Notice No. 2 of 2018
  • Labour Relations Act

Cases cited (5)

  • Mohammed Ali Said v Simba Coach Limited
    [2020] eKLR
  • Geofrey Khisa Mukanda v El.Bari Security Services Limited
  • Catherine Mbithe Maingi v [Dilip] Shah
    [2017] eKLR
  • Jacob Ayiga Maruja and another v Simeon Obayo
    2005 eKLR C.A
  • Joel Kiogora M'iringo v Gabriel Memia & another (Suing as legal representative of Esther Wambeti Memia)
    [2020] eKLR
On appeal from
Magistrates' Court (ELRC)
MCELRC No. 1568 of 2021
Jurisdiction invoked
First appellate jurisdiction over the magistrate's court decision in MCELRC No. 1568 of 2021 (Employment and Labour Relations Court)

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, "Mohamed v Malelu (Appeal E093 of 2022) [2024] KEELRC 454 (KLR)", Case Analysis (2024). Memorandum of Appeal dated 12th June, 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/454/eng@2024-02-21

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