Baruk v Board of Management St Georges High School (Appeal E024 of 2023) [2024] KEELRC 1491 (KLR)
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
#Key legal issues
#Burden of proof for overtime claims under Section 10(7) of the Employment Act
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.
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.
Computation of the overtime award
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.
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.
Duty of first appellate court
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.
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.
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.The appeal is successful and the judgment of the trial court is reviewed with an award for overtime assessed at Ksh.849,700
- 2.The award of Ksh.849,700 is to be paid within 30 days after which time the same shall accrue costs
- 3.The appeal was certified as correctly appealing by way of written submissions agreed by the parties
- 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.
- Kitui Flor Mills Limited v Katiru (Appeal E264 of 2024) [2025] KEELRC 2099 (KLR)[2025] KEELRC 2099 (KLR)17 Jul 2025followed
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.