Moriema Cottages Limited v Manjewa (Appeal E016 of 2023) [2024] KEELRC 1490 (KLR)
The bottom line
#Kenya's Employment Court ruled employers must prove leave and rest days with records, but courts cannot award money never claimed by an employee.
What this practically means
#Executive summary
#Key legal issues
#Burden of proof on claims for accrued leave and rest days
The trial magistrate erred in placing the burden on the employee; the employer must produce work records under Sections 10(7), 73 and 74 of the Employment Act, and without such records the claims should have been awarded
Section 10(7) of the Employment Act places the burden of proving or disproving an alleged term of employment on the employer where no written contract or particulars are produced. The respondent discharged his burden under Section 47(5); the appellant, as employer, was required to justify that leave and rest days were allocated but filed no records. Accordingly, the Cross-Appeal on leave and rest days succeeds.
Award of unpleaded service pay
The award of service pay was erroneous; the claim pleaded was severance pay, and since this was not a redundancy, no severance pay was due and service pay could not be substituted
Parties are bound by their pleadings. Severance pay under Section 40 applies on redundancy; service pay under Section 35 applies to employees not covered by statutory deductions. The two cannot be interchanged. Awarding service pay that was never pleaded, where the respondent enjoyed legal representation and could have amended pleadings, negates the purpose of the law and the pleading principle.
Quantum of accrued annual leave
Annual leave cannot accumulate beyond 18 months; the respondent is entitled to 33 days for the 18-month cut-off period, assessed at Ksh.43,285 based on the und segregated wage of Ksh.39,350
Section 28(2) obliges the employer to ensure the employee takes annual leave, but Section 28(4) bars accumulation beyond 18 months. This being a continuing injury, absent proof that the employee applied for leave and was declined, the claim is cut off at 18 months, yielding 33 leave days at the last basic wage.
Costs in employment claims
Costs in employment claims are discretionary and must be justified on judicially acceptable principles; the trial court's award of costs and interest without reasons was set aside
Under Sections 3 and 12 of the Employment and Labour Relations Court Act, 2011, costs do not automatically follow the cause in employment matters. Where awarded, reasons must be assigned and justification based on judicially acceptable principles. The trial court assigned no reasons for its costs and interest award, so it was set aside.
Legal principles established
#- In employment relations, the duty to keep work records rests on the employer, and where the employer fails to produce records, the burden of proving or disproving an alleged term of employment falls on the employer
- A court cannot award relief not pleaded; parties are bound by their pleadings and evidence at variance with pleadings must be disregarded
- Service pay under Section 35 and severance pay under Section 40 of the Employment Act belong to different regimes of employment and cannot be applied interchangeably
- Annual leave is a continuing injury but cannot accumulate beyond 18 months unless the employee shows he applied for leave and was declined
- Rest days are due at the end of employment where the employer produces no records showing the right was secured
Court orders
#- 1.The judgment in Malindi CMELRC No. 7 of 2021 is reviewed
- 2.Accrued leave awarded at Ksh.43,285
- 3.Rest days awarded at Ksh.734,066
- 4.The award of service pay of Ksh.232,224 is set aside as it was not pleaded
- 5.The costs and interest awarded by the trial court are set aside
- 6.For the appeal and Cross-Appeal and proceedings before the trial court, each party bears its costs
- On appeal from
- Malindi Chief Magistrate's Court (CMELRC)
- Malindi CMELRC No. 7 of 2021
- Jurisdiction invoked
- First appeal to the Employment and Labour Relations Court under the Employment and Labour Relations Court Act, 2011 (Sections 3 and 12 cited on costs)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Moriema Cottages Limited v Manjewa (Appeal E016 of 2023) [2024] KEELRC 1490 (KLR)", Case Analysis (2024). Appeal and Cross-Appeal from Malindi CMELRC No. 7 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1490/eng@2024-05-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.