Board of Management Milo Boys High School v Wakhungu (Employment and Labour Relations Appeal E015 of 2023) [2024] KEELRC 1685 (KLR)
The bottom line
#A Kenyan court confirmed an employer cannot pay below the legal minimum wage and must keep employment records, awarding a cook over KShs 458,000.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent was underpaid during employment with the Appellant
The claimant was a cook entitled to the minimum wage under the Regulation of Wages Order 2018; the contract rate could not override statutory minimum wages; the underpayment award of Kshs 219,709 was upheld
The claimant was employed as a kitchen hand/cook at Kshs 6,000, later Kshs 7,000, contrary to the applicable Regulation of Wages Order of 2018 for an employer based in Webuye Municipality. Section 26 of the Employment Act makes regulated wages basic minimum conditions that contractual terms cannot displace; more favourable terms prevail. The Court therefore upheld the trial magistrate's award of three years' underpayment.
Whether the award of overtime of Kshs 196,635 was justified
The appellant's own witness admitted the claimant worked overtime without pay; the award was upheld
The claimant testified she worked from 5.00 am to 8.00 pm without overtime pay, and the adopted defence witness confirmed cooks reported by 5.00 am, left at 5.30 pm and never received overtime. This amounted to an admission, so there was no misapprehension of the evidence by the trial court and no basis to disturb the award.
Whether the award of Kshs 124,848 for rest days was justified
The award was set aside; it was more probable than not that the claimant, as a cook, got her rest days
The claimant's cateress claim was unfounded since evidence showed she was a cook. The defence witness testified that the school had five cooks and a cateress and that cooks had a day off. On a balance of probabilities the court found the respondent got her rest days, and the appeal succeeded on this head.
Whether the award of Kshs 42,016 leave pay was justified
Upheld; absent contrary evidence, the court found the respondent was not accorded annual leave, the employer having failed to produce leave records
The claimant testified she was not permitted to take leave. The defence witness admitted leave forms existed but none were produced. Section 74 of the Employment Act obliges employers to keep records of annual leave entitlement and days taken under section 28. As custodian of employee records, the employer's failure to substantiate leave taken meant the trial court's holding stood.
Legal principles established
#- A first appellate court must reconsider and re-evaluate the evidence and draw its own conclusions, bearing in mind it has neither seen nor heard the witnesses
- Regulated minimum wages are basic minimum terms that a contract of employment cannot override; where Regulation of Wages Order terms are more favourable, they apply
- The employer is the custodian of employee records and must keep written records including annual leave entitlement under section 74 of the Employment Act
Court orders
#- 1.Judgment of the Honourable P.Y. Kulecho, PM delivered on 29/08/2022 in Webuye SPMC ELRC No E005 of 2021 set aside and substituted
- 2.Judgment entered for the Claimant as against the Respondent: salary arrears of Kshs 219,709
- 3.Overtime payment of Kshs 196,635
- 4.Leave pay in lieu of Kshs 42,016/-
- 5.Total award of Kshs 458,360 payable with interest at Court rate until payment in full from the date of judgment plus costs of the suit
- 6.Each party to bear its costs in the appeal
- On appeal from
- Senior Principal Magistrate's Court, Webuye
- Webuye SPMC ELRC No E005 of 2021
- Jurisdiction invoked
- First appellate jurisdiction over the subordinate court in employment and labour relations matters
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Regency Slots Limited v Omwoyo (Employment and Labour Relations Appeal E172 of 2021) [2025] KEELRC 1713 (KLR)[2025] KEELRC 1713 (KLR)12 Jun 2025
- Achola v Kigen (Chairman Moses Wambugu & Albert Mavutha, Residents' Association Being Sued on their Own Behalf and on Behalf of Pioneer Phase II Estate) (Employment and Labour Relations Appeal E340 of 2024) [2025] KEELRC 1515 (KLR)[2025] KEELRC 1515 (KLR)23 May 2025
Cite this brief
#Cite this brief
Caselaw, "Board of Management Milo Boys High School v Wakhungu (Employment and Labour Relations Appeal E015 of 2023) [2024] KEELRC 1685 (KLR)", Case Analysis (2024). ELRC Appeal No E016 OF 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1685/eng@2024-06-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.