Bii v Lavington Security Limited (Appeal E014 of 2024) [2025] KEELRC 609 (KLR)
The bottom line
#A Kenyan security guard won his wage underpayment claim but lost overtime and holiday pay because he could not prove he actually worked those extra hours.
What this practically means
#Executive summary
#Key legal issues
#Evidential burden for overtime, public holiday and rest-day claims
The Appellant failed to discharge the burden; pleading and submissions cannot substitute for evidence
The Court held that although the contract entitled the Appellant to the benefits, he had to prove he actually worked excess hours and on holidays/rest days. The written contract was exhibited, so Section 10(7) did not reverse the burden. The Labour Office letter was opinion, not conclusive evidence.
Underpayment of monthly salary
Appellant entitled to the balance of underpayment at Kshs. 59,283
Using Legal Notice No. 2 of 2018, the applicable basic monthly rate was Kshs. 14,038 for a night guard plus 15% house allowance under Regulation 5 of the Protective Security Services Order, yielding Kshs. 16,143. Paid Kshs. 9,600 monthly, he was underpaid Kshs. 6,543 x 24 = Kshs. 157,032; having received Kshs. 97,749, the balance is Kshs. 59,283.
Adoption of a prior judgment as the judgment of the Court
The Judgment in Appeal No. E013 of 2024 (Elijah Machoka Omanga v. Lavington Security Limited) was adopted, subject to necessary modifications
The pleadings, evidence and documents were identical to those in the companion appeal; both Appellants shared the same contractual details and filed word-for-word identical grounds, so the same judgment was adopted with modifications to the underpayment figures.
Legal principles established
#- Submissions are not evidence; they must be founded on established facts
- The primary evidential burden of establishing entitlement to overtime, holiday and rest-day benefits lies on the Claimant/Employee
- 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
- Findings or recommendations of the Labour Office do not bind the Court
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 (Employment and Labour Relations Court subordinate/ELRC first instance)
- not stated
- Jurisdiction invoked
- Appellate jurisdiction of the Employment and Labour Relations Court over appeals from the Trial Court (first-appeal jurisdiction); specific provision not stated in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bii v Lavington Security Limited (Appeal E014 of 2024) [2025] KEELRC 609 (KLR)", Case Analysis (2025). Appeal (Employment and Labour Relations Court, Nakuru) - companion to ELRC Appeal No. E013 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/609/eng@2025-02-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.