Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCAllowedKaloleni CMELRC No. E009 of 2023 (Appeal)· [2024] KEELRC 1491 (KLR)

Baruk v Board of Management St Georges High School (Appeal E024 of 2023) [2024] KEELRC 1491 (KLR)

Employment and Labour Relations Court
23 May 2024
2,220 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court ruled that employers must produce work records in overtime disputes or pay the claimed overtime in full.

What this practically means

#

Executive summary

#
The appellant, formerly employed by the respondent as a groundsman from 1 October 2008 and redeployed as a night watchman from 6 September 2011 until his summary dismissal on 11 August 2021, sued for terminal dues including overtime of Ksh.849,700 for working 6 pm to 6 am with 4 hours' overtime daily. The trial court (Kaloleni CMELRC No. E009 of 2023, judgment of 20 September 2023) found unfair termination and awarded unpaid leave, notice pay, house allowance and three months' compensation, but dismissed the overtime claim for want of evidence, applying Section 27 of the Employment Act and the Wage Order on 52 working hours per week. On appeal by written submissions, the appellant contended that the trial court erred in placing the burden of proving overtime on him when the work records (clock-in/clock-out registers) were in the respondent's custody and were never produced. The court, rehearing the matter as a first appeal, held that keeping and producing work records is the legal duty of the employer once a suit is filed, under Section 10(7) of the Employment Act, which displaces the Evidence Act in this regard. The respondent's pleading of a 12-days-on/2-days-off rota was bare of records; its witness claimed records were stolen but reported nothing to the police. The appellant, having pleaded and testified to the overtime, discharged his burden under Section 47(5), shifting the burden to the respondent under Section 43. Computing overtime at 4 hours daily (104 hours monthly) against the 8-hour daily limit for security guards and deducting the 164 leave days admitted, the court found the claim of Ksh.849,700 modest and allowed the appeal, reviewing the trial judgment with that award, payable within 30 days failing which it shall accrue costs.

Key legal issues

#
01

Burden of proof for overtime claims under Section 10(7) of the Employment Act

Holding

The employer bears the burden of producing work records and disproving an alleged term of employment; the trial court erred in placing the burden on the appellant.

Reasoning

The employer is the legal custodian of all work records and, once a suit is filed, must produce them; the regulatory framework is the ELRC (Procedure) Rules, 2016 and Section 10(7) of the Employment Act, which displace the Evidence Act. The respondent's Memorandum of Response pleaded a 12-days-on/2-days-off rota but was not accompanied by any work records and was left bare. The appellant pleaded and testified to working 6 pm to 6 am with 4 hours' overtime daily, discharging his duty under Section 47(5); the burden then shifted to the respondent under Section 43 to justify the position with records. Its witness's evidence of stolen records, with no police report, could not discharge that duty.

p. 4
02

Computation of the overtime award

Holding

Working 12 hours a day against the permitted 8 hours gave 4 overtime hours daily, translating to 104 hours a month; after deducting the 164 leave days admitted, the claimed Ksh.849,700 was modest and was awarded in full.

Reasoning

Under the Regulation of Wages (Protective Security Services) Order 1998, a security guard may work 52 hours spread over a 7-day week, i.e. 8 hours per day. The appellant claimed overtime on a rate of 26 days per month, giving total rest days of 4 in a month as required under Section 27 of the Employment Act. Twelve-hour shifts yielded 4 overtime hours a day, or 104 hours monthly. After accounting for the 164 leave days the appellant admitted taking, the pleaded figure of Ksh.849,700 was modest and was awarded.

p. 5
03

Duty of first appellate court

Holding

As a first appeal, the court must re-evaluate the entire record, re-assess the trial court's findings and make its own conclusions, while according due weight to the trial court's advantage of hearing witnesses.

Reasoning

The court restated the settled duty on a first appeal: to re-evaluate the entire record and re-assess findings and conclusions, but bearing in mind that the trial court had the opportunity to hear and question witnesses. Applying that duty to the record, the court found the trial magistrate erred in dismissing the overtime claim for want of evidence when the evidential gap lay with the employer who failed to produce the work records in its custody.

p. 3

Legal principles established

#
  • Once a suit is filed, the legal burden to produce employment records rests on the employer as legal custodian of all work records; if the employer fails to produce a written contract or written particulars, the burden of proving or disproving an alleged term of employment is on the employer.
  • Employment records must be kept by the employer for at least five years after termination of employment and made available to the court once a claim is filed.
  • Where an employee pleads and testifies to overtime hours and the employer, as custodian of work records, produces none to negate the claim, the employee's evidence stands and an award should be made.

Court orders

#
  1. 1.The appeal is successful and the judgment of the trial court is reviewed with an award for overtime assessed at Ksh.849,700
  2. 2.The award of Ksh.849,700 is to be paid within 30 days after which time the same shall accrue costs
  3. 3.The appeal was certified as correctly appealing by way of written submissions agreed by the parties

Authorities

#

Legislation

  • Employment ActSections 10(6), 10(7), 27, 28, 43, 47(5)
  • Labour Institutions Act - Regulation of Wages (General) OrderRule 5(2)
  • Regulation of Wages (Protective Security Services) Order 199852 hours per week for security guards
  • Evidence ActCap 80 (Laws of Kenya)
  • Employment and Labour Relations Court (Procedure) Rules, 2016

Cases cited (6)

  • Yaa v SGA Security Solutions Limited
    ELRCA No. E002 of 2022 (Malindi)
  • Abigail Jepkosgei Yator & Another v China Hanan International Co. Ltd
    [2018] eKLR
  • Martin Ireri Ndwiga v Olerai Management Co. Ltd
    [2017] eKLR
  • Myanyasa v Lavington Security Limited
    Civil Appeal 55 of 2019
  • Ngunda v Ready Consultancy Limited
    Civil Appeal 129 of 2019
  • Daniel Toroitich arap Moi v Mwangi Stephen Muriithi & Another
    [2014] eKLR
On appeal from
Magistrates' Court (Kaloleni, ELRC)
Kaloleni CMELRC No. E009 of 2023
Jurisdiction invoked
First appeal from the trial court under the Employment and Labour Relations Court procedure framework

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Baruk v Board of Management St Georges High School (Appeal E024 of 2023) [2024] KEELRC 1491 (KLR)", Case Analysis (2024). Kaloleni CMELRC No. E009 of 2023 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1491/eng@2024-05-23

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