Sgs Security Guards Services Ltd v Chepkemoi (Employment and Labour Relations Appeal E119 & E133 of 2024 (Consolidated)) [2025] KEELRC 1362 (KLR)
The bottom line
#A Kenyan court ruled that a monthly salary paid above minimum wage counts as including house allowance, but untaken leave must still be paid for up to 18 months.
What this practically means
#Executive summary
#Key legal issues
#Whether the Kshs. 18,000 monthly salary was inclusive of house allowance
The trial court erred; the salary exceeded the minimum wage (Kshs. 15,201.65 for a day guard) and was pleaded only as monthly salary, so it was consolidated and inclusive of house allowance; the award of Kshs. 97,200 was set aside.
The court applied the Regulation of Wages General Order 2022 minimum wage for a day guard and computed the 15% housing rate, finding the claimant was paid above the minimum. The claimant never described the pay as basic or gross, and RW1's unchallenged statement that the salary was all-inclusive stood. The court upheld Patrick Nambila Mikuzi on consolidated salaries and set aside the award.
Whether the cross-appellant was entitled to overtime and public holiday pay
No; the claims failed for want of proof of specific hours and days worked, applying Rogoli Ole Manadiegi.
The court found no pleading of the overtime hours worked and no evidence of working beyond the statutory maximum. Following Rogoli Ole Manadiegi, the employer's default in producing records does not by itself establish the claim; the burden of establishing hours or days in excess of the legal maximum rests with the employee.
Whether the cross-appellant was entitled to untaken leave and leave travelling allowance
Yes; annual leave is a statutory right and, absent employer leave records, leave was awarded limited to 18 months under section 28(4), totalling Kshs. 21,600 plus Kshs. 3,300 travel allowance.
It was undisputed the claimant never took leave. The employer, being custodian of leave records under sections 10 and 74 of the Employment Act, filed none to rebut the claim. The court applied section 28(4)'s 18-month limitation, computing 21/30 x 18,000 x 18 months, and awarded the Kshs. 3,300 travel allowance as sought.
Whether the claim for unremitted NSSF dues could be granted
No; the claim was disallowed, the trial court's reliance on Simiyu v Nzoia Sugar Company was upheld, and the claimant was directed to lodge the claim with NSSF.
The court noted the NSSF statement did not establish the Kshs. 400 as unremitted and followed its own prior decision in Simiyu v Nzoia Sugar Company Limited, upholding the trial court's dismissal of that head while preserving the claimant's ability to pursue NSSF directly.
Legal principles established
#- A salary pleaded as a monthly salary, paid above the prevailing minimum wage, may be inferred to be consolidated and inclusive of house allowance
- Untaken annual leave is limited to the 18-month window under section 28(4) of the Employment Act
- A first appellate court must re-evaluate the evidence and draw its own conclusions while making allowance for not having seen or heard the witnesses
- An appellate court will not interfere with an inferior court's exercise of discretion unless the decision is clearly wrong
Court orders
#- 1.The appeal dated 12th April 2024 is allowed and the award of house allowance of Kshs. 97,200 is set aside and substituted with an order dismissing the claim for house allowance
- 2.Judgment is entered for the claimant against the respondent for untaken leave and leave travel allowance for a total sum of Kshs. 24,900 with interest at court rates from the judgment date
- 3.Costs of the claim to the claimant
- 4.Each party to bear own costs in the appeal and in the cross-appeal
- On appeal from
- Chief Magistrate's Court at Nairobi
- MCELRC/E2030/2022
- Jurisdiction invoked
- First appellate jurisdiction over the Chief Magistrate's Court (ELRC) under the Employment and Labour Relations Court Act and the Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sgs Security Guards Services Ltd v Chepkemoi (Employment and Labour Relations Appeal E119 & E133 of 2024 (Consolidated)) [2025] KEELRC 1362 (KLR)", Case Analysis (2025). Appeal E133 of 2024 (consolidated with Cross Appeal No. E133 of 2024), from MCELRC/E2030/2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1362/eng@2025-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.