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ELRCPartially AllowedNot stated in judgment (appeal against SPM judgment of 16th September 2024)· [2025] KEELRC 1216 (KLR)

Obia v JRS Group Limited (Appeal E061 of 2024) [2025] KEELRC 1216 (KLR)

Employment and Labour Relations Court
30 April 2025
2,920 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed a guard's dismissal was fair, but still increased his pay award to Kshs.180,702 for underpayment and unpaid leave.

What this practically means

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Executive summary

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This is a first appeal to the Employment and Labour Relations Court at Kisumu against the judgment of Hon. E.A. Obina, S.P.M delivered on 16th September 2024 in George Otieno Obia v JRS Group Limited. The appellant, a day guard employed by the respondent from November 2014 to September 2021, claimed overtime, underpayment, rest days, gratuity, leave allowance, salary in lieu of notice and compensation for unlawful termination. The trial court found the termination fair but awarded underpayment and leave allowance totaling Kshs.165,610.20. Guided by Selle v Associated Motor Boats Co. Ltd on the retrial nature of a first appeal, Gakeri J reviewed the record and found the respondent had issued notices to show cause, held a hearing, and obtained the appellant's signed committee conclusion terminating employment effective 23rd September 2021 with a right of appeal which he never exercised; the court upheld the finding that the termination was substantively and procedurally fair. On reliefs, the court recalculated underpayment at Kshs.147,924.00 applying the Regulation of Wages (General) Amendment Order 2018, limited to 3 years under Section 90 of the Employment Act, and increased leave pay to Kshs.32,778.00 for 3 years at 21 days per year. Claims for overtime, rest days and gratuity failed for lack of verifiable evidence and legal basis; salary in lieu of notice was refused because the dismissal was for gross misconduct under Section 44 of the Employment Act. The total award was Kshs.180,702.00, all other trial court awards upheld, and each party was ordered to bear its own costs of the appeal.

Key legal issues

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01

Fairness of termination

Holding

Termination was substantively and procedurally fair; appellant signed notices, hearing conclusion and did not appeal

Reasoning

The record showed notices to show cause, prior warnings, a hearing with a person of the appellant's choice, a signed committee conclusion terminating employment effective 23rd September 2021 with a 7-day right of appeal which the appellant did not exercise. The appellant, who alleged constructive dismissal, gave no circumstances and bore the burden of proof which he failed to discharge.

p. 5
02

Underpayment computation and limitation

Holding

Appellant entitled to underpayment for 3 years only, recalculated at Kshs.147,924.00 per Regulation of Wages (General) Amendment Order 2018

Reasoning

Although the appellant agreed to the salary, the minimum wage is a prescription of law binding on the employer. However, claims are subject to the 3-year limitation in Section 90 of the Employment Act, so only underpayment within 3 years up to 23rd September 2021 was recoverable, and the trial court's computation was found too low.

p. 5
03

Leave allowance

Holding

Appellant entitled to pay for unutilised leave for 3 years at 21 days per year, Kshs.32,778.00

Reasoning

Annual leave is a statutory right and the respondent adduced no evidence of having provided for it, notwithstanding that the appellant never applied for leave. The court recalculated the award upward from the trial court's figure.

p. 6
04

Overtime and rest days

Holding

Both claims failed for lack of verifiable supporting evidence

Reasoning

The appellant did not demonstrate when overtime was worked or demanded, and the claim assumed he worked every day including days of absence, suspension or training. Similarly no verifiable evidence of working on rest days existed, and RWI confirmed a 6-day working week.

p. 5

Legal principles established

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  • For a termination to pass the fairness test there must be both substantive justification and a fair procedure
  • An appellate court will not interfere with findings of fact of a trial court unless based on no evidence or on wrong principles
  • The burden of proving unfair termination lies on the employee
  • Gratuity must have a contractual or collective agreement basis to be payable

Court orders

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  1. 1.Award of underpayment of Kshs.147,924.00
  2. 2.Award of leave pay of Kshs.32,778.00 (total award Kshs.180,702.00)
  3. 3.All other awards by the trial court upheld
  4. 4.Each party to bear own costs of the appeal

Authorities

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Legislation

  • Employment ActSections 41, 43(d), 44(1), 44(4)(c), 90
  • Evidence ActSections 107, 108 (quoted as Section 8 in judgment)
  • Regulation of Wages (General) Amendment Order 2018Minimum wage for day watchman
  • Regulation of Wages (Protective Security Services) Orders 1998Regulation 7
  • Constitution of KenyaArticles 159(2)(d), 48
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (11)

  • Abigael Jepkosgei Yator & Another v China Hanan International Co. Ltd
    [2018] eKLR
  • Mary Achieng Ouma v Salihiya Co. Ltd
    [2016] eKLR
  • German School Society Ltd v Helaga Ohany
    [2022] eKLR
  • Selle and Another v Associated Motor Boats Co. Ltd
    [1968] EA 123
  • Peters v Sunday Post Ltd
  • Myrsal & Another v Manese (Suing as the Legal Administrator of Dalphine Kanini Manesa
    [2022] KEHC 282 KLR
  • East Produce (K) Ltd v Chrisptopher Astiado Osiro
    Civil Appeal No. 43 of 2000
  • Kiema Mutuku v Kenya Cargao Hauling Services Ltd
    [1991]
  • Alice Wanjiru Ruhiu v Messiac Assembly of Yahuch
    [2021] eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
  • Mkube v Nyamuro
    [1983] LLR 403
On appeal from
Senior Principal Magistrate's Court
George Otieno Obia v JRS Group Limited
Jurisdiction invoked
First appeal to the Employment and Labour Relations Court (stated as a first appeal; no specific constitutional provision invoked)

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, "Obia v JRS Group Limited (Appeal E061 of 2024) [2025] KEELRC 1216 (KLR)", Case Analysis (2025). Not stated in judgment (appeal against SPM judgment of 16th September 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1216/eng@2025-04-30

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.