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ELRCPartially AllowedAppeal No E023 of 2023· [2024] KEELRC 610 (KLR)

Cotec Security Group Ltd (Formerly Known as Bedrock Holdings Ltd) v Kenya National Private Security Workers Union (Appeal E023 of 2023) [2024] KEELRC 610 (KLR)

Employment and Labour Relations Court
19 March 2024
CBC. N. Baari
3,637 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court slashed a former Maseno University employee's award because the trial court gave more than was claimed and proof was missing.

What this practically means

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Executive summary

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The Respondent, a former employee, had obtained a judgment in the Chief Magistrates' Court awarding Kshs 669,634 for underpayment, house allowance, off-duty allowance, leave days and overtime, less sums paid. The Appellant appealed, contending inter alia that the court awarded more than was pleaded, that dues were time-barred, and that salary was consolidated; the Respondent cross-appealed on gratuity, overtime limitation and the overtime multiplier. Baari J framed three issues: unpleaded awards, continuing injuries, and entitlement to the dues. The court found the Trial Court erred in awarding more than was pleaded, without justification. On limitation, Section 90 of the Employment Act allowed claims within twelve months of cessation; the suit, filed within weeks of retirement on 30th April 2019, was timely, but claims accruing before 30th April 2016 were statute barred. On the merits, underpayment was recalculated from the Minimum Wages Orders at Kshs 71,623.25 and house allowance at Kshs 65,258.82 for the period when the wage orders excluded it; the off-duty, overtime and leave awards were set aside for lack of proof, the Appellant having paid Kshs 68,107 for 147 unutilised leave days; gratuity was declined absent contractual basis, NSSF contributions having been made. The appeal partly succeeded, with the awards for underpayment and house allowance substituted and the remaining awards set aside, and the Appellant ordered to bear the costs of both the lower court suit and the appeal.

Key legal issues

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01

Whether the Trial Court awarded amounts not pleaded

Holding

The Trial Court erred in awarding more than was pleaded for underpayments and unpaid leave

Reasoning

The amended memorandum of claim pleaded Kshs 143,840.40 for underpayment and Kshs 75,107.40 for unpaid leave, but the Trial Court awarded Kshs 325,080 and Kshs 100,940 respectively. Pleadings bind parties and evidence or awards at variance with them must be disregarded. No reason was given to justify the departure, making the higher awards a misdirection.

p. 6
02

Limitation of claims as continuing injuries under Section 90 of the Employment Act

Holding

Claims were within the 12-month post-cessation window, but claims accruing before 30th April, 2016 were statute barred

Reasoning

The grievant was retired on 30th April, 2019 and the suit filed on 24th June, 2019, within the twelve months stipulated by Section 90. The cause of action arose on cessation of employment, so any claim before 30th April, 2016 (three years prior) was barred. The court therefore restricted its assessment to the period 30th April, 2016 to 30th April, 2019.

p. 6
03

Underpayment entitlement

Holding

Underpayment assessed at Kshs. 71,623.25 based on Minimum Wages Orders for the limitation period

Reasoning

The contract relied on by the Appellant did not cover the relevant period and was of no use. The payslip showed Kshs 10,500 per month against minimum wages of Kshs 12,926.55 (2016-2017), Kshs 13,572.90 (2017-2018) and Kshs 15,141.95 (2018-2019), producing a total underpayment of Kshs 71,623.25, substituting the Trial Court's higher award.

p. 7
04

House allowance

Holding

House allowance awarded only for the period when the Minimum Wage Orders excluded it

Reasoning

For January to April 2019 the minimum wage was inclusive of house allowance, so nothing was payable. For May 2016 to December 2018 the minimum wages excluded house allowance; the grievant was entitled to 15% of basic salary for that period, computed at Kshs. 65,258.82, in substitution for the Trial Court award of Kshs 131,826.

p. 7
05

Off-duty and overtime claims

Holding

Both awards set aside for failure of proof

Reasoning

The muster roll produced only showed days the grievant was present at work, not extra hours worked. The grievant led no evidence that he worked beyond contracted hours, and the contract was silent on working hours. The awards of off-duty allowance and overtime were accordingly set aside entirely.

p. 7

Legal principles established

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  • Parties are bound by their pleadings and evidence at variance with pleadings must be disregarded
  • A claim based on continuing injury under Section 90 of the Employment Act must be brought within twelve months of cessation of the violation
  • A first appellate court must re-evaluate, re-assess and re-analyse the evidence on the record

Court orders

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  1. 1.The award of Kshs. 325,000 on account of salary underpayment is set aside and substituted with an award of Kshs. 71,623.25
  2. 2.The award of Kshs. 131,826 in house allowance is set aside and substituted with Kshs. 65,258.82
  3. 3.The award of Kshs. 115,140 off-duty allowance is set aside entirely
  4. 4.The award of Kshs. 100,940 on account of leave is set aside
  5. 5.The Appellant will bear the costs of both the suit before the lower court and those of the appeal

Authorities

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Legislation

  • Employment ActSection 90
  • Limitation of Actions ActSection 4(1)
  • Labour Institutions ActSection 48(1)
  • Regulation of Wages (General) OrderRule 6
  • Regulation of Wages and Conditions of Employment Act (Legal Notice No. 24)Paragraph 17

Cases cited (13)

  • Daniel Otieno Migore versus South Nyanza Sugar Co. Ltd
    [2018] eKLR
  • Independent Electoral and Boundaries Commission & Ano. vs. Stephen Mutinda Mule & 3 others
    (2014) eKLR
  • Kenya Union of Commercial Food and Allied Workers vs Generation Electric Allied Limited
    [2019] eKLR
  • Stephen O Edewa vs Lavington Security Limited
    [2019] eKLR
  • Hezron Kihumba Kamotho v Teachers Service Commission
    [2019] eKLR
  • Wells Fargo ltd v Julius Ihomba Gatete
    [2018] eKLR
  • The German School Society & another v Ohany & another
  • Kengo Bakari Mwandogo v Kaluworks ltd
    [2020] eKLR
  • Vipingo Ridge vs Swalehe Ngonge Mpitta
    [2022] eKLR
  • Irungu Githae vs Mutheka farmers co-operative society ltd
  • Adetoun Oladeji (NIG) v Nigeria Breweries PLC SC 91/2002
    SC 91/2002
  • Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates
    [2013] eKLR
  • Balakrishna S.P. Waghmare v Shree Dhyaneshwar Maharaj Sansthan
    AIR 1959 SC 798
On appeal from
Chief Magistrates' Court
Not stated
Jurisdiction invoked
First appellate jurisdiction over an appeal from the Chief Magistrates' Court in an employment claim; appeal and cross-appeal from judgment of 6th April, 2023

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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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, "Cotec Security Group Ltd (Formerly Known as Bedrock Holdings Ltd) v Kenya National Private Security Workers Union (Appeal E023 of 2023) [2024] KEELRC 610 (KLR)", Case Analysis (2024). Appeal No E023 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/610/eng@2024-03-19

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