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ELRCPartially AllowedNot stated in the judgment as provided· [2024] KEELRC 1348 (KLR)

Mburu v Gillys Security Investigations Services Ltd (Cause 779 of 2018) [2024] KEELRC 1348 (KLR)

Employment and Labour Relations Court
6 June 2024
NMNzioki wa Makau
3,064 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan security guard won only 12 months of underpayment back-pay because waiting too long and keeping no records sank his other claims.

What this practically means

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Executive summary

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The Claimant, employed as a security guard from 29th December 2009 at a monthly salary of Kshs. 5,800/-, sued the Respondent alleging non-remittance of NHIF and NSSF contributions, non-payment of house allowance, underpayment below minimum wage orders, unpaid overtime, rest day and public holiday pay, and constructive termination, resigning on 30th March 2016. He sought notice pay, house allowance, underpayments, overtime, rest day pay, public holidays, NSSF, NHIF, compensation for unfair termination, costs, interest and a certificate of service. The Respondent denied the claims, asserting the Claimant absconded duty, that the claim was time barred under section 90 of the Employment Act, and that the ELRC lacked jurisdiction to grant most reliefs. The Court found the constructive dismissal claim failed for want of evidence of egregious employer conduct, holding that the Claimant resigned voluntarily. Applying section 90, it held underpayment is a continuing wrong recoverable only for the 12 months preceding the suit, awarding Kshs. 78,875.30. House allowance was refused as the wage was consolidated; overtime, rest day, public holiday and notice pay claims were disallowed for want of records and because the resignation was voluntary. On NSSF, the Court directed the Respondent to file an original statement within 21 days for reconciliation by the Deputy Registrar, with any gaps referred back for possible sanctions. Judgment was entered for the Claimant on underpayment only, with costs limited to that sum, interest from date of judgment, and a certificate of service.

Key legal issues

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01

Constructive dismissal

Holding

Claim fails; the Claimant did not prove conduct so egregious that resignation was the only option

Reasoning

The Court adopted the Coca Cola v Ligaga principle that constructive dismissal turns primarily on the employer's conduct. The Claimant made bare assertions of a hostile environment but led no evidence of specific incidences or corroboration showing he had no option but to resign. The claim was therefore not made out.

p. 4
02

Limitation on underpayment claim

Holding

Only underpayment within 12 months of filing recoverable; awarded Kshs. 78,875.30

Reasoning

Applying section 90 of the Employment Act, underpayment claims become stale after 12 months. The Court limited recovery to the 2015-2016 period, computing the shortfall between the going wage of Kshs. 12,597.91 and the Kshs. 5,800 paid, over the months available.

p. 5
03

Unremitted statutory deductions

Holding

Court directed reconciliation of NSSF remittances with possible sanctions if gaps found

Reasoning

The Claimant's NSSF statement showed gaps and showed a different employer. Rather than awarding the sums directly, the Court directed the Respondent to file an original statement within 21 days, the Deputy Registrar to verify it, and any gaps to be referred back to the Court for sanctions.

p. 5

Legal principles established

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  • Underpayment of wages is a continuing wrong which, under section 90 of the Employment Act, becomes stale beyond 12 months preceding filing
  • Claims for overtime, rest days and public holidays must be supported by records and tabulation, failing which they fail

Court orders

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  1. 1.Respondent directed to file an original copy of the NSSF statement for the period it was the Claimant's employer within 21 days of judgment, with the Deputy Registrar ascertaining accuracy in form and substance; any gaps to be referred back to the Court for additional orders on sanctions against the employer
  2. 2.Judgment entered for the Claimant on underpayment in the sum of Kshs. 78,875.30 (Kshs. 67,979.10 + Kshs. 10,896.20)
  3. 3.Costs limited to the sum awarded for underpayment
  4. 4.Interest at court rates on the underpayment sum from date of judgment until payment in full
  5. 5.Certificate of service to be issued

Authorities

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Legislation

  • Employment Actsection 90
  • Employment Actsection 36
  • Employment Actsection 27(2)
  • Employment Actsection 10(3)(a)(i)
  • Employment Actsection 51(1)

Cases cited (13)

  • John Musakali v Speaker County Assembly of Bungoma & 4 others
    [2015] eKLR
  • Okoiti v Parliamentary Service Commission & 2 others; Speaker of the National Assembly & another (Interested Parties)
    (Petition E166 of 2022) [2023] KEELRC 252 (KLR) (7 February 2023) (Ruling)
  • Coca Cola East & Central Africa Limited v Maria Kagai Ligaga
    [2015] eKLR
  • Ronald Nyambu Daudi v Tornado Carriers Limited
    [2019] eKLR
  • Boniface Nkubi Karagania v Protective Custody Limited
    [2019] eKLR
  • Kennedy John Achoki v Secretary General Jubilee Party & 7 others
    [2017] eKLR
  • Jackson Koome v M'limongi M'ikuamba & 2 others
    [2018] eKLR
  • Gencel v Goga
    (Civil Suit E015 of 2022) [2023] KEHC 18429 (KLR) (31 May 2023) (Judgment)
  • Ben Nandasaba Muiyundo v Ideal Security Services Limited
    [2018] eKLR
  • John Kiiru Njiiri v University of Nairobi
    [2021] eKLR
  • Maawiya Ali Abdala t/a South-Coast Paint & Hardware v Bongo Mwamwero Ngome
    [2022] eKLR
  • Achieng' v Africa Diatomite Industries Limited & another
    (ELRC Cause 13 of 2020) [2023] KEELRC 293 (KLR) (2 February 2023) (Judgment)
  • Herbert Wafula Waswa v Kenya Wildlife Services
    [2020] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour relations disputes (Constitution, Art. 162(2)) - suit under 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, "Mburu v Gillys Security Investigations Services Ltd (Cause 779 of 2018) [2024] KEELRC 1348 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1348/eng@2024-06-06

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