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ELRCPartially AllowedNot stated in the judgment· [2025] KEELRC 604 (KLR)

Omanga v Lavington Security Limited (Appeal E013 of 2024) [2025] KEELRC 604 (KLR)

Employment and Labour Relations Court
28 February 2025
2,065 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a first-instance appeal to the Employment and Labour Relations Court at Nakuru against a Trial Court judgment of 27th February 2024, in which the Appellant, a night guard declared redundant after two years of service, was awarded underpayment of salary, annual leave and severance pay totalling Kshs. 124,895, with costs and interest. He appealed, seeking overtime, public holiday pay and off-duty (rest) day pay, and an enhancement of the underpayment award. The parties agreed to have the appeal determined on the record and written submissions. The Court, per James Rika, Judge, held that submissions are not evidence and that figures introduced only in submissions cannot be tested in cross-examination; that although Section 74 of the Employment Act obliges employers to keep records, the primary evidential burden lay on the Appellant to establish he worked overtime, on public holidays and rest days; that the reverse burden under Section 10(7) applies only where the employer fails to exhibit a written contract, which was not the case here; and that the Labour Office's recommendations do not bind the Court. On underpayment, the Court found the Appellant's applicable basic monthly salary was Kshs. 14,038 with 15% house allowance under Regulation 5 of the Protective Security Services Order, yielding Kshs. 16,143 gross against the Kshs. 9,600 paid, a 24-month shortfall of Kshs. 157,032, of which Kshs. 59,283 remained unpaid. The appeal was partly allowed; the Respondent was ordered to pay the balance of Kshs. 59,283 with interest, with no order on costs.

Key legal issues

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01

Evidential burden on an employee claiming overtime, public holiday and rest day pay

Holding

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.

Reasoning

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.

p. 3
02

Effect of Section 10(7) of the Employment Act on the burden of proof

Holding

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.

Reasoning

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.

p. 4
03

Weight of Labour Office findings

Holding

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.

Reasoning

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.

04

Computation of underpayment of salary

Holding

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.

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The Appeal is partly allowed
  2. 2.The Respondent shall pay the balance of underpayment of salary at Kshs. 59,283
  3. 3.No order on the costs
  4. 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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.