Kimani v Lavington Security Limited (Appeal E015 of 2024) [2025] KEELRC 603 (KLR)
The bottom line
#A Kenyan security guard won higher underpayment compensation but lost overtime and holiday claims because he had no evidence of the actual days and hours worked.
What this practically means
#Executive summary
#Key legal issues
#Evidential burden of proving overtime, public holiday and rest day work
The Trial Court correctly declined these prayers; the Appellant failed to adduce evidence of the specific days and hours worked
Although the written contract established entitlement to overtime, rest days and holiday pay under the contract read with the Industry Wage Order, the issue was whether the Appellant proved he actually worked excess hours or on specific holidays and rest days. He pleaded only generally, tabulated figures for the first time in submissions, and did not request production of the Respondent's employment records. The burden of proof was not reversed by Section 10(7) since a written contract was exhibited.
Weight of Labour Office findings
The Labour Officer's letter establishing 96 off-duty days did not bind the Trial Court
The Labour Officer makes recommendations under Section 47(2) of the Employment Act based on his opinion as to the best means of settling a dispute. Such opinion is not conclusive evidence of disputed matters before the Court. The Trial Court therefore properly disregarded the letter as proof of the rest days claim.
Underpayment of salary computation
The Appellant's monthly consolidated salary ought to have been Kshs. 16,143; he was underpaid by Kshs. 6,543 monthly, and the Court granted the balance of Kshs. 59,283 over the earlier award
The Appellant worked at NCPB in Subukia, falling within former Town Councils under the Legal Notice, and his designation was not particularized by the Respondent, so he was taken as a night guard with a basic monthly rate of Kshs. 14,038. Regulation 5 of the Regulation of Wages (Protective Security Services) Order entitled him to 15% house allowance. He was paid Kshs. 9,600 monthly, producing an underpayment of Kshs. 157,032 over 24 months; the Trial Court had awarded Kshs. 97,749.
Legal principles established
#- Submissions are not evidence; they must be founded on facts established through pleadings and evidence
- Findings or recommendations of the Labour Office do not bind the Court
- Reverse burden under Section 10(7) of the Employment Act applies only where the Employer has failed to exhibit a written contract or written particulars
- It remains the primary evidential responsibility of a Claimant to establish entitlement to benefits, notwithstanding the Employer's duty to keep records
Court orders
#- 1.The Appeal is partly allowed
- 2.The Respondent shall pay to the Appellant, the balance of underpayment of salary at Kshs. 59,283
- 3.No order on the costs
- 4.Interest allowed at court rate, from the date of Judgment, till payment is made in full
- On appeal from
- Trial Court (magistrates' court, Employment and Labour relations claim)
- Jurisdiction invoked
- First appellate jurisdiction over the Trial Court under the Employment and Labour Relations Court Act / Employment Act framework
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kimani v Lavington Security Limited (Appeal E015 of 2024) [2025] KEELRC 603 (KLR)", Case Analysis (2025). Appeal (ELRC Nakuru, related to E012 of 2024; companion Appeals E013 of 2024 and E014 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/603/eng@2025-02-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.