Kenya Petroleum Oil Workers Union v Birgis Service Station (t/a Total Nyamasaria Service Station (Cause E073 of 2021) [2024] KEELRC 2475 (KLR)
The bottom line
#A Kenyan employment court awarded a former worker leave pay, service pay and unpaid salary, but dismissed underpayment claims filed too late.
What this practically means
#Executive summary
#Key legal issues
#Whether the claim for salary underpayments was statute-barred under Section 90 of the Employment Act
The underpayment claim was a continuing injury; filed more than 12 months after the grievant's resignation on 8th January 2020, it was time barred and dismissed
The court held that underpayment, being a monthly occurrence throughout employment, is a continuing injury. Applying Black's Law Dictionary and Indian authority on continuing wrongs, the 12-month limitation under Section 90 ran from cessation of employment. Resignation was on 8th January 2020 and suit was filed on 26th October 2021, more than a year later, so the claim failed.
Whether the grievant was entitled to pay for accrued leave days
Leave is an annual terminal due, not a continuing injury; the Respondent failed to show leave was taken or paid for, and Kshs 48,933 was awarded as prayed
The court found the employer bore the burden of proving the employee took leave or was paid in lieu. Leave is annual and thus a terminal due at separation, so the Section 90 continuing-injury limitation did not apply. The Respondent produced no such evidence, and the claim succeeded as prayed.
Whether the grievant proved the public holiday claim
The claim failed as unproven; the Claimant neither identified the holidays nor produced evidence of work on them, and issued no notice to produce under Section 74
Although the Claimant argued the Respondent failed to avail records under Section 74 of the Employment Act, the court held the claims remained mere assertions. No documents were produced showing the grievant worked during public holidays, and no notice to produce was issued to trigger the employer's duty to avail records.
Whether unpaid salary for 18 days worked in December 2019 was payable despite short resignation notice
The Respondent did not deny owing the unpaid salary and had no counterclaim for pay in lieu of notice; the 18 days' salary of Kshs 13,981 was awarded
The court acknowledged the resignation notice was shorter than the 28 days prescribed under Sections 35(1)(c) and 36 of the Employment Act. However, since there was no counterclaim for a month's salary in lieu of notice and the Respondent did not deny owing the unpaid salary, the amount could not be offset and the claim was allowed as prayed.
Whether the grievant was entitled to service pay
Service pay awarded as prayed because the Respondent led no evidence that the grievant was enrolled in a pension scheme or NSSF
The court found the Respondent produced no evidence of enrolment of the grievant in any pension scheme or NSSF, which under Section 35(5) of the Employment Act would disqualify service pay. In the absence of such proof, the claim for two years' service pay of Kshs 23,301 was merited and awarded.
Legal principles established
#- Salary underpayment is a continuing injury under Section 90 of the Employment Act and a claim for it must be filed within 12 months of cessation of employment
- Accrued untaken leave is an annual terminal due owed at separation, not a continuing injury
- An employer who neither shows an employee took leave nor paid for untaken leave is liable for accrued leave pay
- A party cannot offset unpaid salary against pay in lieu of notice where no counterclaim for the notice period has been pleaded
Court orders
#- 1.Pay for accrued leave days at Kshs 48,933/=
- 2.Service pay at Kshs 23,301/=
- 3.Unpaid salary for 18 days worked in December, 2019 at Kshs 13,981/=
- 4.Costs of the suit to be borne by the Respondent
- Jurisdiction invoked
- Original jurisdiction of the Employment and Labour Relations Court over employment and labour relations disputes
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Petroleum Oil Workers Union v Birgis Service Station (t/a Total Nyamasaria Service Station (Cause E073 of 2021) [2024] KEELRC 2475 (KLR)", Case Analysis (2024). ELRC Cause (Memorandum of Claim dated 15th October 2021, filed 26th October 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2475/eng@2024-10-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.