Board of Management - Milo Boys High School v Mabonga (Employment and Labour Relations Appeal E016 of 2023) [2024] KEELRC 1696 (KLR)
The bottom line
#A Kenyan court confirmed that a cook's contractual salary could not fall below the legal minimum wage, awarding him Kshs. 355,878 in unpaid dues.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent was underpaid
The minimum wage order applied notwithstanding the contractual salary; the underpayment award of Kshs. 142,920 was upheld.
The claimant was employed as a cook at a contractual salary of Kshs. 7,000 (appointment letter Kshs. 6,000) contrary to the wage orders. The defence witness admitted in cross-examination that the wage order entitled a cook to Kshs. 12,000 minimum. Section 26 of the Employment Act makes wage-order terms basic minimum conditions that a contract cannot derogate from. The court upheld the magistrate's finding on underpayment.
Whether the overtime award should stand
Overtime award of Kshs. 130,576 upheld; the appellant's own evidence admitted overtime was worked but not paid.
The claimant testified he worked from 3.00 am to 11.00 pm without overtime pay. In cross-examination the defence witness admitted the cook reported by 5.00 am, left at 5.30 pm and never received overtime. The court found no misapprehension of the evidence by the magistrate and declined to disturb the award.
Whether the rest days award should stand
Rest days award of Kshs. 172,000 set aside; the claimant probably received his rest days.
The claimant testified he worked seven days a week, but the defence witness stated in cross-examination that the cooks have a day off. On a balance of probabilities the court found the claimant got his rest days, so the appeal succeeded only on this head and the award was set aside.
Whether the leave pay award should stand
Leave pay upheld; the appellant failed its section 74 record-keeping burden by not producing leave forms.
The claimant denied taking leave; the defence said he took leave during school holidays but admitted it had no leave forms despite claiming he used to fill them. As custodian of employee records, the appellant was bound under section 74 of the Employment Act to keep leave records and, having failed to produce them, did not discharge its burden; the award of Kshs. 82,382 was upheld.
Legal principles established
#- Regulated minimum wages are basic minimum terms and conditions of service that a contract of employment cannot override; the more favourable terms apply.
- An employer bears the burden under section 74 of the Employment Act to keep and produce employee leave records; failure to produce leave forms means the claimant was not accorded annual leave.
- A first appellate court must re-evaluate the evidence and draw its own conclusions while making allowance for not having seen or heard the witnesses.
Court orders
#- 1.Judgment of the trial court set aside and substituted with judgment for the claimant of salary arrears Kshs. 142,920, overtime Kshs. 130,576 and leave pay in lieu Kshs. 82,382, totalling Kshs. 355,878
- 2.Total award payable with interest at Court rate until payment in full from the date of judgment plus costs of the suit
- 3.Each party to bear its own costs in the appeal
- On appeal from
- Senior Principal Magistrate's Court, Webuye
- SPMC ELRC No. E004 of 2021
- Jurisdiction invoked
- First appellate jurisdiction over the magistrate's court ELRC cause
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Board of Management - Milo Boys High School v Mabonga (Employment and Labour Relations Appeal E016 of 2023) [2024] KEELRC 1696 (KLR)", Case Analysis (2024). Appeal E004 of 2021 (Webuye SPMC ELRC No. E004 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1696/eng@2024-06-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.