Kentonda Company Limited v Wafula (Appeal E055 of 2024) [2025] KEELRC 48 (KLR)
The bottom line
#Kenyan courts will believe an employee's account when an employer cannot produce legally required work records, but vague overtime claims fail.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether an employer-employee relationship existed between the parties
- 2.Whether the termination of the respondent's employment was unfair, unlawful and wrongful
- 3.Whether the trial court's general award of reliefs as pleaded was supported by the law and evidence
Key legal issues
#Employment relationship and casual employment
The admission of casual employment placed the employer under a duty to produce work records; absent records, the employee's account prevails and Section 37 protections apply
The appellant admitted engaging the respondent casually when work was available. Under Sections 10(6) and (7) read with Section 74 of the Employment Act, the employer must file work records with the claim. Without records the employer fails its legal duty, and the court is bound to believe the employee. The respondent was thus a protected employee entitled to statutory benefits.
Unfair termination and due process
Termination without notice, hearing and valid reasons under Sections 35, 45 and 49 of the Employment Act was unfair; compensation must be awarded with reasons, not a general award as pleaded
Section 37 entitled the respondent to notice under Section 35, a hearing, and valid and justified reasons. The appellant did not address these mandatory provisions. The trial court correctly found unfair termination but made a general award of the maximum 12 months' compensation without justification; judicial discretion requires stated reasons, and two months' gross wage was appropriate for under a year of service.
Overtime claim
The overtime claim failed for want of particulars; the employee must establish excess hours
The respondent pleaded overtime generally without stating when work started or ended. The employer's duty to produce records does not arise where the employee gives no particulars. Establishing hours served beyond the legal maximum rests with the employee, per Rogoli Ole Manadiegi and Patrick Lumumba Kimuyu. The global figure claimed was not justified.
Legal principles established
#- Where an employer fails to produce work records required under Sections 10(6), (7) and 74 of the Employment Act, the court is bound to believe the employee's particulars of claim
- Casual employees admitted by the employer fall under the protective provisions of Section 37 of the Employment Act
- An employer who does not justify termination reasons suffers an adverse finding of unfair termination
- The burden of establishing overtime hours rests with the employee, not by default of the employer's records
Court orders
#- 1.Compensation of Ksh.31,217.40
- 2.Notice pay of Ksh.15,608.70
- 3.Underpaid house allowance of Ksh.10,956.60
- 4.Service pay of Ksh.7,500
- 5.Costs of the lower court as awarded
- 6.Respondent awarded 50% of costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Mombasa CMELRC Cause No. E029 of 2022
- E029 of 2022
- Jurisdiction invoked
- First appeal to the Employment and Labour Relations Court from the trial court's judgment
Relief refused
#Overtime pay for 1 hour per day for 18 months (Ksh.65,502)
General pleading without particulars of the hours worked; the burden of establishing excess hours rests with the employee
Claim for unpaid NHIF deductions of Ksh.9,000
The employee cannot access statutory dues on the claim for NHIF deductions
12 months' compensation (Ksh.180,000) as claimed
Trial court made a general award without reasons; reduced to two months' gross wage given the short service period
Costs
Costs of the lower court as awarded; for the appeal, the respondent is awarded 50% of his costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Without the records necessary under the law, the employer has failed under its legal duty, and the court is bound to believe the employee and the particulars of the claim.
In claiming overtime pay, however, the employee is not deemed to establish the claim for overtime pay by default of the employer bringing such employment records to court.
Accordingly, the appeal is partially successful, as analyzed above. The judgment in Mombasa CMELRC No.E029 of 2022 is reviewed in the following terms;
Compensation Ksh.31,217.40; Notice pay Ksh.15,608.70; Underpaid house allowance Ksh.10,956.60; Service pay Ksh.7,500; Costs of the lower court as awarded; For the appeal, the respondent is awarded 50% of his costs.
Issues in the judgment
#The judgment states the overtime claim was for 18 months in the pleadings but later refers to '18 years'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kentonda Company Limited v Wafula (Appeal E055 of 2024) [2025] KEELRC 48 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/48/eng@2025-01-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.