Omanga v Lavington Security Limited (Appeal E013 of 2024) [2025] KEELRC 604 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Evidential burden on an employee claiming overtime, public holiday and rest day pay
The Appellant bore the primary evidential responsibility to establish by evidence that he worked excess hours and on public holidays and rest days; pleadings and submissions cannot substitute for evidence.
Although Section 74 of the Employment Act requires employers to keep employment records, and the Regulation of Wages (Protective Security Services) Order 1998 provides for overtime, weekly rest and holiday work, it remained for the Claimant to establish facts entitling him to those benefits. Figures introduced only in submissions could not be tested in cross-examination.
Effect of Section 10(7) of the Employment Act on the burden of proof
The reverse burden applies only where the employer failed to exhibit a written contract or written particulars; here the written contract was exhibited, so the burden was not reversed to the Respondent.
The Appellant's written contract was exhibited before the Trial Court; it identified his consolidated monthly salary, his entitlement to one rest day weekly, and incorporated the Industry Wage Order. The issue was not entitlement but whether the Appellant adduced evidence of actually working on the days and hours claimed.
Weight of Labour Office findings
The Labour Officer's recommendations under Section 47(2) of the Employment Act are opinions on the best means of settling a dispute and do not bind the Court.
The letter from the County Labour Office, said to establish the Appellant's entitlement to 96 off-duty days, was not conclusive evidence of matters disputed before the Court and the Trial Court was entitled to disregard it.
Computation of underpayment of salary
The Appellant's applicable basic monthly rate was Kshs. 14,038 with 15% house allowance under Regulation 5 of the Industry Wage Order, giving a gross of Kshs. 16,143; against Kshs. 9,600 paid monthly, the 24-month shortfall was Kshs. 157,032, of which Kshs. 59,283 remained unpaid after the Trial Court's award.
The Respondent had the legal duty to particularise the Appellant's designation; failing that, the Court upheld the Appellant's position that he was a night guard. House allowance was not included in the monthly rates under the Legal Notice, which included it only in daily and hourly rates.
Legal principles established
#- Submissions are neither pleadings nor evidence; they must be founded on established facts
- The findings or recommendations of the Labour Office do not bind the Court
- The 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
Court orders
#- 1.The Appeal is partly allowed
- 2.The Respondent shall pay 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 in full
- On appeal from
- Trial Court (not specified in the judgment)
- Jurisdiction invoked
- Appellate jurisdiction of the Employment and Labour Relations Court (provision not stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Omanga v Lavington Security Limited (Appeal E013 of 2024) [2025] KEELRC 604 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/604/eng@2025-02-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.