Nguli v Southern Sky Safaris Limited & another (Cause E091 of 2023) [2025] KEELRC 50 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the remedies sought (service pay, overtime, leave pay, outstation transport allowances and Covid-era salary deductions) should be issued
- 2.Who should pay the costs
- 3.Whether the 2nd respondent was properly joined as a party
Key legal issues
#Service pay for 4 years
Not due; statutory dues were remitted and the contract provided no service pay
Section 35(5) and (6) of the Employment Act makes service pay due where the employer has not placed the employee under pension or medical cover or failed to remit statutory dues. The 1st respondent confirmed remittance of NSSF and NHIF dues, and the written contract contained no service pay benefit, so the claim fails on both statutory and contractual grounds.
Overtime pay
Not justified; overtime was self-imposed and unapproved
Overtime claims accrue monthly and are subject to the 12-month continuing-injury rule per Ol Pejeta and related Court of Appeal authority. The claimant worked late hours as a personal decision to cope with her work, not at the employer's direction, and never sought formal approval. Where the employer requires overtime, records must be kept and approved; none existed here.
Leave pay for 2019 and 2020
Not justified; the claim for leave allowances in lieu of leave is not contractually provided for and leave lapses after 18 months
Under section 28 of the Employment Act annual leave is a legal right but must be taken when due and cannot accumulate beyond 18 months unless the employer approves carry-over. The claimant neither took the claim within the regulatory window nor sought leave allowances instead of leave, a benefit absent from the employment contract.
Outstation transport allowances
Not payable; the claimant had a company vehicle for all transport needs
The claimant was allocated a fully fueled company vehicle, KBQ 417A, covering her transport needs. Travelling on her own account to Makueni or Nairobi and then claiming allowances is unjustified, particularly as outstation travel required employer approval which was not obtained. The purpose of the allocated benefit is defeated by opting out of it.
Covid-era salary deductions
Lawful and justified; the variation complied with section 10(5) and the claimant consented in writing
Section 10(5) requires any change to contractual terms to be in writing with employee consent. The 2nd respondent emailed a written proposal on 30 April 2020 for a 50% salary cut citing Covid losses; the claimant replied in writing concurring, while requesting rent payment, which the respondents paid. The variation was therefore lawful, though the court noted redundancy under section 40 would have been the lawful alternative to unilateral non-payment.
Joinder of the 2nd respondent
The 2nd respondent was not a necessary party as the employer was the 1st respondent
The contract of service was issued by the 1st respondent, not the 2nd respondent. Though the respondents are closely connected, the employment relationship was with the 1st respondent only, making the joinder of the managing director unjustified; the court noted the point should have been raised earlier.
Legal principles established
#- Overtime is a continuing injury and must be filed within 12 months of cessation of the injury or damage
- Any variation of an employment contract requires a written proposal and the employee's written consent under section 10(5) of the Employment Act
- Service pay accrues only where the employer has not provided pension/medical cover or remitted statutory dues, or where the contract confers it
- Annual leave cannot accumulate beyond 18 months absent employer approval under section 28(4)
- Registry boundaries within a court station should not bar filing for reasons of access to justice
Court orders
#- 1.The claim is dismissed
- 2.The claimant is to meet 25% of the respondent's costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment claims (Employment Act, 2007); venue objection from Malindi resolved as registry under Mombasa main station
Relief refused
#Service pay for 4 years (Ksh.240,000)
Statutory dues (NSSF and NHIF) were remitted and the written contract provided no service pay benefit
Overtime pay (Ksh.156,300)
The claimant, as manager, worked overtime by personal choice without the employer's direction or approval
Leave pay for 2019 and 2020 (Ksh.400,000)
Leave cannot accumulate beyond 18 months without employer approval; leave allowances in lieu of leave are not provided for in the contract
Outstation transport allowance (Ksh.200,000)
The claimant was provided a fully fueled company vehicle; unauthorised self-arranged travel cannot ground a claim
Deductions during Covid (Ksh.1,245,438)
The salary reduction was made by written proposal under section 10(5) of the Employment Act and the claimant consented in writing
Notice pay (Ksh.300,000)
The claimant admitted at the hearing that notice pay was not due since she served the notice period
Constructive dismissal claim
The claimant did not plead constructive dismissal despite evidence of frustration
Costs
The claimant is to meet 25% of the respondent's 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.
Accordingly, the claim is without merit and is hereby dismissed. The claimant is to meet 25% of the respondent's costs.
Where the employee decides to work overtime, such as not being a requirement of the employer, the basis for a claim for overtime pay is lost.
Any change(s) to the employment contract must be in writing and with the approval of the employee.
The salary review is lawful and justified.
The boundaries on whether to file a matter in Mombasa or Malindi should not be a bar.
The 2nd respondent was not a necessary party in these proceedings but this issue ought to have been addressed before the matter progressed this far.
Issues in the judgment
#Paragraph 41 reproduces a garbled/incomplete quotation of section 10(5) of the Employment Act, with internal text truncated mid-sentence: 'Where any matter stipulated in subsection (1) changes, the shall, in consultation with the employee, revise the contract'
Quantum figures are internally inconsistent: the claimant pleaded deductions during Covid of Ksh.1,245,438 but testified the illegal deductions were Ksh.2,034,820
Case number and neutral citation are not stated anywhere in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nguli v Southern Sky Safaris Limited & another (Cause E091 of 2023) [2025] KEELRC 50 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/50/eng@2025-01-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.